Jim Jordan Letter to Vidal on West Virginia v. EPA Could Implicate USPTO’s Section 101 Subject Matter Eligibility Guidelines

“In West Virginia…the Supreme Court wisely rejected an unconstitutional attempt to go around Congress and unilaterally advance progressive goals through the administrative state. This abuse of administrative law is not limited to the EPA.” – Rep. Jim Jordan

Jim JordanOn November 1, Representative Jim Jordan (R-OH) sent letters to several federal agency heads, including Kathi Vidal, Director of the U.S. Patent and Trademark Office (USPTO), asking those officials what their agencies had done to respond to the U.S. Supreme Court’s mandate in West Virginia v. Environmental Protection Agency decided this June. While Jordan’s letter is clearly responding to political developments during the Biden Administration, West Virginia has garnered interest among some patent industry stakeholders responding to recent USPTO rulemaking surrounding subject matter eligibility under 35 U.S.C. § 101.

Jordan: West Virginia Could Help ‘Rein in Out-Of-Control Administrative State’

In West Virginia, the Supreme Court held that the EPA did not hold authority properly delegated by Congress to devise emissions caps based on the generation-shifting approach taken by the agency in the Obama-era Clean Power Plan. In so holding, the Supreme Court invoked the “major questions” doctrine, finding that the EPA’s plan to shift energy generation from higher-emitting to lower-emitting forms of energy at the grid level invoked a concern of “vast economic and political significance,” namely the amount of coal-produced energy that should take place in the United States. Examining Section 111(d) of the Clean Air Act, which the EPA cited as the source of its authority for the generation shifting approach, did not provide clear congressional authority for this approach.

In his letters, Jordan credited West Virginia with beginning “to rein in the out-of-control and out-of-touch modern administrative state.” Although commentators following the Supreme Court’s ruling in the case have focused on its impact on federal rulemaking related to climate change, Jordan’s letters indicate a much further reach across many federal agencies, including the USPTO, the U.S. Department of Homeland Security, the U.S. Department of Justice and the Federal Trade Commission.

“In West Virginia, the Supreme Court reaffirmed a key feature of our constitutional system: that significant policy decisions should be made by the elected representatives of the American people… The Supreme Court wisely rejected an unconstitutional attempt to go around Congress and unilaterally advance progressive goals through the administrative state. This abuse of administrative law is not limited to the EPA.”

Federal Agencies Asked to Ensure Rulemaking is Consistent With West Virginia

Jordan’s letter argued that the Supreme Court’s ruling in West Virginia is critical for addressing allegedly unconstitutional actions by the Biden Administration, which “has issued scores of executive orders and approved more major rules than any recent president.” The letter noted that the Supreme Court recently struck down the Biden Administration’s vaccine mandate promulgated through the Occupational Safety and Health Administration (OSHA) in National Federation of Independent Business v. Department of Labor (2022).

In each of the letters, directed to the head of agencies overseen by the House Judiciary Committee, for which Jordan serves as Ranking Member, Director Vidal and the other agency heads are asked to provide answers to the following questions by November 15:

  1. All documents or communications referring or relating to USPTO’s responses to, or changes in policy based on, West Virginia v. EPA, including any memoranda or guidance on how to account for this decision in future agency actions and policy development.
  2. A list of all pending cases to which USPTO is a party that bear on West Virginia v. EPA or the major questions doctrine. Please provide any relevant filings from each case.
  3. A list of all completed rulemakings since January 20, 2021, and the specific statutory authority for each rulemaking. In addition, please describe how each rule is consistent with West Virginia v. EPA.
  4. A list of all pending or expected rulemakings since January 20, 2021, and the specific statutory authority for each rule. In addition, please describe how each pending or expected rule is consistent with West Virginia v. EPA.
  5. A list of all completed guidance documents published or issued since January 20, 2021, as well as a list of expected future guidance documents to be published or issued, and specific statutory authority for each guidance document. Such documents may include guidance documents issued to USPTO employees that affect the public, and documents pertaining to individual applications or cases that are intended to have broad or general applicability to the public. For each guidance document, please explain why USPTO or its component entities opted to publish or issue guidance rather than promulgate a rule subject to notice and comment requirements. In addition, if the guidance document is not online, please provide a digital copy of that guidance.

West Virginia and Henry Schein Inc. Reaffirm Congress’ Role in Clarifying Section 101

The impacts of the Supreme Court’s ruling in West Virginia on the USPTO’s rulemaking has already been noted in responses to the agency’s recent request for comments on the subject matter eligibility guidelines for examiners assessing Section 101 issues in filed patent applications. Curtis A. Evans, patent attorney and CEO of TrackTime, argued that West Virginia stood for the premise that the USPTO lacks authority to develop Section 101 eligibility guidelines from the court-derived Alice/Mayo test. Evans further noted that the Supreme Court’s 2019 holding in Henry Schein Inc. v. Archer and White Sales Inc., in which the Court eliminated a judicially-created exception within arbitration law while acknowledging that “we may not engraft our own exceptions onto the statutory text,” creates questions to the long-term viability of the judicially-created Section 101 exceptions upon which the USPTO’s patent eligibility guidelines are based.

It remains to be seen what impact that West Virginia will have on rulemaking outside of the EPA and other agencies advancing the Biden Administration’s policies on climate change. While Jordan’s letters envisage a wider application of the Supreme Court’s ruling that will impact rulemaking at several federal agencies, it’s not clear that federal courts will view patent law as a major question of “vast economic and political significance” in the same way that it views climate change matters. Still, recent Supreme Court decisions in West Virginia and Henry Schein Inc. help to reaffirm the importance of Congressional legislation over agency interpretations and judicial doctrines, if only Congress would take the invitation to bring clarity and sanity to Section 101 of patent law.

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104 comments so far.

  • [Avatar for Anon]
    Anon
    November 16, 2022 02:08 pm

    LOL – it is not I that needs the luck, oh-not-so-curious one.

    But you be you atop that peak of yours.

  • [Avatar for Curious]
    Curious
    November 16, 2022 09:41 am

    I saw your last post was quite lengthy so I spent about 10 seconds quickly scanning it for anything interesting — e.g., a discussion of 101, the case law surrounding it, how it is interpreted by the Federal Circuit or perhaps a discussion of Killian’s claims. I found nothing (as expected). As such, I quickly concluded that your post was more of your usual fare — attacking me personally while making no attempt to actually engage in a conversation about the law. Hence, I did not read what you wrote. Sorry — better luck next time.

  • [Avatar for Anon]
    Anon
    November 16, 2022 08:08 am

    LOL. You walked right into that one. That was my point,

    Obtuse. Is it deliberate?
    That you think that “I walked right into that one” only shows that YOU walked off of your Peak of Mount Stupid and came crashing down to the earth. I simply NEED NOT express an opinion on one explicit case in order to discuss real world patent law and practice.

    That YOU think this to be necessary shows that YOU do not understand either what ‘being an academic’ OR ‘being a practitioner’ means.

    How in the world did you get through law school where attorneys learned how to obtain the Rule of Law from a case to apply to other fact situations? You seemingly demand ONE case’s fact pattern to control ALL discussion – and that is just not how real world patent law works.

    Your passions appear to be in (i) attacking posters for not having the same opinion as you, (ii) creating novel catch-phrases in the hope that someone picks up on them, and (iii) advocating for things (e.g., the creation of a new patent court that takes the Supreme Court out of the equation) that will never come to pass.

    Go back and reread my post. As to (i), I address this – and it is different than how you present. As to (ii), my rhetoric does indeed use “novel catch-phrases,” but this is more a function of knowing the forum that I am in (blogging). Your place on the peak of your Mount Stupid prevents you from understanding why that tool of rhetoric is entirely appropriate. As to (iii), you misstate the result of something that you simply lack the balls to pursue, as well as forget that I have provided SEVERAL options, that the one that you lack fortitude with is but one of them.

    To my statement of, “You want to make it seem like the jurisprudence is a non-self-conflicting thing – and it just not so.”
    You ERR in reply with, “How about you actually address the point I was making instead of changing the subject?
    My comment does NOT change the subject. My comment immediately addresses the point of YOUR shortcoming. The fact that you do not see this only emphasizes how tall your Peak is.

    The fact that the Federal Circuit’s law is inconsistent (a fact that I’ve discussed on this blog for probably going on a decade … if not longer) doesn’t necessarily impact one’s ability to present arguments that are capable of being effective.
    Nice strawman, as I have never said otherwise. Quite in fact I have myself – for MORE than a decade – pointed out the case law that IS beneficial to applicants. More so than you – but you be you and pretend otherwise.
    Your “fake” dialogue of WHY I present that the law is inconsistent only shows your inability to recognize HOW that inconsistency impacts the Rule of Law.

    This IS a point that B pounded you on.

    You ignored that.

    You seem totally incapable of even recognizing the point – even as you want to stick your head in the sand and proclaim “just deal with what the courts have done to you.”
    That’s how I perceive many of my conversations with you.””

    Key phrase there: “how I perceive” Naturally that is how you perceive as you have refused to even bother attempting otherwise – and is exactly WHY the Peak of Mount Stupid applies to you.

    “All law (not just patent law) is chock full of seemingly inconsistent language. Merely jumping up and down screaming “The law is inconsistent” rarely helps your client.”

    Talk about moving the goalposts. Your attempt to insert the word “seemingly” is downright error. The law of eligibility as (improperly) re-written by the Supreme Court IS self-inconsistent. There is NO “seemingly” about it. I have pointed out in the past how leaders of all three branches (in case you have forgotten, that would be Legislative, Judicial, and Executive have outright stated that the Supreme Court’s writing is self-inconsistent). Further, your characterization of, “Merely jumping up and down screaming” falls well short of what I have done. It is an outright dishonest statement from you.

    Just looking at patent law, claim construction involves incorporating limitations from the specification … or not. Indicia of nonobviousness are given weight … or not. When there are no bright line tests, the factors will always be given variable weight. This inconsistent application of the law is ubiquitous in patent law and elsewhere.

    Another strawman, as I have never indicated otherwise – and this has NOTHING to do with the problem created by the Supreme Court.
    Wake up son.

    In the context of 35 USC 101, it means knowing how the Court should be applying Steps 2A and 2B.
    Here – YOU step right into it, as “should” is clearly NOT being met – this is not only due to HOW the CAFC is applying the re-written law to cases, but deeper (and your lack shows here), the fact that the Supreme Court itself is simply inconsistent. The Rule of Law IS violated – and your falling back to “should” shows that you just do not grasp why.

    And speaking of 101 and Killian’s claims, yet again, you make no explicit comments about either. That’s the Anon highly-preferred approach to commenting — attack a person for their opinion without providing any specific opinion of one’s own.

    Your attribution of ad hominin is simply false – and I explained why directly below. I do not “attack YOU for your opinion” as much as I attack your errant methodology in providing your opinion. Again, this is a basic skill of attorneys taught way back in 1L. Maybe (just maybe) you will take your moniker to heart and check into what you should have learned so long ago.

  • [Avatar for Curious]
    Curious
    November 15, 2022 10:10 pm

    You want to pin your position on some position that I have never expressed?
    LOL. You walked right into that one. That was my point, you’ve never expressed an opinion on Killian’s claims as evaluated under the Federal Circuit’s interpretation of 101. You don’t practice law. You practice ivory tower gobbledygook.

    It only means that YOU lack the ability to understand the real impact to the practice of law. My discussions ARE about the actual practice of law.
    Except you don’t express opinions regarding the actual practice of law. How should Killian rewrite his claims to get around 101? How should have B made better arguments that might have had a chance at the Federal Circuit? Those are opinions that involve the actual practice of law. Your passions appear to be in (i) attacking posters for not having the same opinion as you, (ii) creating novel catch-phrases in the hope that someone picks up on them, and (iii) advocating for things (e.g., the creation of a new patent court that takes the Supreme Court out of the equation) that will never come to pass.

    You want to make it seem like the jurisprudence is a non-self-conflicting thing – and it just not so.
    How about you actually address the point I was making instead of changing the subject? The fact that the Federal Circuit’s law is inconsistent (a fact that I’ve discussed on this blog for probably going on a decade … if not longer) doesn’t necessarily impact one’s ability to present arguments that are capable of being effective.

    Anon: The law is inconsistent. The law is inconsistent.
    Curious: I agree. However, I can still present arguments A and B that can be effective regarding either approach that the Federal Circuit may apply.
    Anon: The law is inconsistent. The law is inconsistent.
    Curious: What do you think about argument A and argument B?
    Anon: The law is inconsistent. The law is inconsistent.
    Curious: You don’t have anything to say about A or B?
    Anon: The law is inconsistent. The law is inconsistent.
    Curious: Moron.
    Anon: The law is inconsistent. The law is inconsistent.

    That’s how I perceive many of my conversations with you.

    That one CAN argue ANY side is exactly why the Rule of Law is violated.
    All law (not just patent law) is chock full of seemingly inconsistent language. Merely jumping up and down screaming “The law is inconsistent” rarely helps your client. Just looking at patent law, claim construction involves incorporating limitations from the specification … or not. Indicia of nonobviousness are given weight … or not. When there are no bright line tests, the factors will always be given variable weight. This inconsistent application of the law is ubiquitous in patent law and elsewhere. As such, it is exceedingly common that one CAN argue ANY side. Get over it. Good lawyers develop arguments akin to “Tails I win, and Heads you lose.” This means if the law that is being applied is Heads, I need to know the weakness of the Heads side and be able to argue it. In the context of 35 USC 101, it means knowing how the Court should be applying Steps 2A and 2B.

    And speaking of 101 and Killian’s claims, yet again, you make no explicit comments about either. That’s the Anon highly-preferred approach to commenting — attack a person for their opinion without providing any specific opinion of one’s own.

  • [Avatar for Curious]
    Curious
    November 15, 2022 09:58 pm

    You’re too pathetic sometimes for words, Curious
    LOL. Reading comprehension is not your forte, is it?

    To reproduce a portion of your cited passage:
    The use of a third-party intermediary (or “clearing house”) is also a building block of the modern economy. See, e.g., Yadav, The Problematic Case of Clearinghouses in Complex Markets, 101 Geo. L. J. 387, 406–412 (2013); J. Hull, Risk Management and Financial Institutions 103–104 (3d ed. 2012). Thus, intermediated settlement, like hedging, is an “abstract idea” beyond the scope of §101.
    They used intrinsic evidence as to the abstract idea – not the whether the additional elements were well-understood, routine, conventional activity.

    You do remember when you wrote?
    @ Curious “You do realize that the courts have relied upon intrinsic evidence (e.g., the specification) to determine whether the additional elements are well-known, routine, and conventional.”
    Notice the difference between your comment to me, which refers to additional elements and the Supreme Court’s statement that “intermediate settlement … is an abstract idea.”

    Quit when you are behind. This is only embarrassing you in front of your client.

  • [Avatar for Anon]
    Anon
    November 15, 2022 06:30 pm

    Curious,

    Now you are just being a dullard.

    Remind me again when was the last time you wrote… [Killian’s claims]

    You want to pin your position on some position that I have never expressed?

    Really?

    Then your repeat your banal line about somehow my not wanting to discuss the practice of law (in error asserting that my posts are ‘academic”).

    That YOU do not understand the very real impact to the practice of law does NOT make my posts “academic.” It only means that YOU lack the ability to understand the real impact to the practice of law. My discussions ARE about the actual practice of law.

    You pat yourself WAY too hard on your own back about “having balls” and your “subject your analysis to scrutiny” is found wanting, and YOU cannot deal with that.

    The point that neither B nor Anon seems to get, despite my many attempts to educate them, is that there are ways to successfully argue the CURRENT Federal Circuit case law that doesn’t involve trying to burn down the last 8 years of Federal Circuit jurisprudence

    How many times are you going to make this error? You want to make it seem like the jurisprudence is a non-self-conflicting thing – and it just not so. Even the Supreme Court’s own cases (not even adding in the extra self-induced conflicts of the CFAC) cannot stand on its own.

    That one CAN argue ANY side is exactly why the Rule of Law is violated. The Rule of Law does NOT permit such a “pick a result (any result), and the case law can be chosen to fit.” This was made abundantly clear to you and yet you act as if YOU are the only one that “understands” actual practice of law.

    You think far better of yourself than you have shown in your comments. And this is exactly why the Peak of Mount Stupid is so apt for you (and your understanding of what that means is not necessary for it to be so).

  • [Avatar for B]
    B
    November 15, 2022 04:09 pm

    @ Curious “Point to me where in Alice the Supreme Court referred to evidence?”

    “On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk. Like the risk hedging in Bilski, the concept of intermediated settlement is “ ‘a fundamental economic practice long prevalent in our system of commerce.’ ” Ibid.; see, e.g., Emery, Speculation on the Stock and Produce Exchanges of the United States, in 7 Studies in History, Economics and Public Law 283, 346–356 (1896) (discussing the use of a “clearing-house” as an intermediary to reduce settlement risk). The use of a third-party intermediary (or “clearing house”) is also a building block of the modern economy. See, e.g., Yadav, The Problematic Case of Clearinghouses in Complex Markets, 101 Geo. L. J. 387, 406–412 (2013); J. Hull, Risk Management and Financial Institutions 103–104 (3d ed. 2012). Thus, intermediated settlement, like hedging, is an “abstract idea” beyond the scope of §101.”

    You’re too pathetic sometimes for words, Curious

  • [Avatar for Curious]
    Curious
    November 15, 2022 03:44 pm

    Not until I pointed out to the Federal Circuit that the SCOTUS always referred to evidence on this issue, and I argued the whole evidence issue YEARS before Berkheimer.
    Always referred to evidence? Point to me where in Alice the Supreme Court referred to evidence? This is from the Alice opinion:
    The same is true with respect to the use of a computer to obtain data, adjust account balances, and issue automated instructions; all of these computer functions are “well-understood, routine, conventional activit[ies]” previously known to the industry. Mayo, 566 U. S., at ___ (slip op., at 4). In short, each step does no more than require a generic computer to perform generic computer functions.
    Where did SCOTUS refer to evidence? They didn’t. They just made it up. This is what the Supreme Court wrote in Mayo:
    We find that the process claims at issue here do not satisfy these conditions. In particular, the steps in the claimed processes (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field. At the same time, upholding the patents would risk disproportionately tying up the use of the underlying natural laws, inhibiting their use in the making of further discoveries.
    The only “evidence” they referred to was the ‘623 Patent (i.e., the patent they invalidated, which constitutes intrinsic evidence).

    As for your “Not until I point out …” comment, did you not read the quote from MPEP 2106.05(d) that I reproduced below? The Federal Circuit has been using the specification as evidence as to what is well-known/conventional for years and years. You didn’t point it out for the first time in your oral argument. Why do you continue to misrepresent the state of the law?

    Now I’m arguing that Alice Corp. and Bilski were decided based on extrinsic evidence – a fact that you now want to deny as much as Chen and Taranto.
    These cases weren’t based on extrinsic evidence. Of course, it would be trivial to you to cite me a passage from CLS Bank that supports your position. You will, however, not cite me that passage because it doesn’t exist. As for Bilski, the well-understood, routine, and conventional activity test was first supplied by Mayo, which issued after Bilski. As such, Bilski contains no discussion of this. The only evidence relied upon by the Supreme Court in Bilski involved the assertion that hedging is a fundamental economic practice long prevalent in commerce for which they cited a couple of books. However, that evidence was directed to the abstract idea – not the additional elements.

    You are beyond lame.
    How about you act like a lawyer and ditch the petty insults while actually presenting some case law (with pinpoint cites) that support your positions?

  • [Avatar for B]
    B
    November 14, 2022 01:42 pm

    @ Curious “You do realize that the courts have relied upon intrinsic evidence (e.g., the specification) to determine whether the additional elements are well-known, routine, and conventional.”

    Not until I pointed out to the Federal Circuit that the SCOTUS always referred to evidence on this issue, and I argued the whole evidence issue YEARS before Berkheimer.

    It’s all captured on audio

    Now I’m arguing that Alice Corp. and Bilski were decided based on extrinsic evidence – a fact that you now want to deny as much as Chen and Taranto.

    You are beyond lame.

  • [Avatar for Curious]
    Curious
    November 14, 2022 12:12 pm

    He is the epitome of that phrase.
    Remind me again when was the last time you wrote something to the effect of “B … I think Killian’s claims are patent eligible based upon the Federal Circuit case law.”

    Curious is – by far – one of the least curious repeat posters, as when he has a view that he likes, he has NO curiosity as to ANY competing view.
    LOL. As I wrote below “you aren’t interested in discussing the practice of law.” You like to criticize other’s people analysis but you are always so careful never to put forth any analysis of your own. You claim I’m not curious, but at least I have the balls enough to subject my analysis to scrutiny and to scrutinize other people’s analysis. You lack balls to do either or perhaps you aren’t curious enough about the actual practice of law to comment on it. It seems to me that your curiosity is limited to philosophical debates about fire-hosed monkeys, and sovereigns, and mathS and Gordian knots and Kavanaugh’s scissors. Why don’t you take a step down from your ivory tower and start discussing the actual practice of law.

    Yet somehow Curious missed the underlying reason HP failed at summary judgment, i.e., there was no evidence to support the notion that various claims amounted to well-known, routine, and conventional activity.
    You do realize that the courts have relied upon intrinsic evidence (e.g., the specification) to determine whether the additional elements are well-known, routine, and conventional. Because you don’t understand the law, you don’t know how the Federal Circuit (and the Board) screws applicants. The critical aspect of this analysis is not the evidence as to what is well-known, routine, and conventional activity. Rather, the aspect of this analysis is the proper classification of those the elements that recite the abstract idea versus those elements that recite additional elements. To invalidate claims, the Federal Circuit (and Board) classify as many claim elements as possible as reciting the abstract idea. This is what they did in Killian, and this is how they screw all applicants.

    The key language is on page 18 of the Slip Opinion:
    But as the Board in this case properly found, substantial evidence from Mr. Killian’s application supports its finding that the additional elements of representative claim 1 do not add “a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which would be considered ‘something more’ than the judicial exception.” Killian, 2021 WL 363335, at *9. Specifically, the Board found that the additional elements of claim 1—beyond the abstract idea of determining entitlement to certain SSDI benefits— are “providing a computer processor and a computer readable media” and various references throughout the claim indicating that the steps are intended to be performed on a computer, such as “through the computer network,” “providing a caseworker display system,” and “electronic (data record).” Id. at *8. The Board, quoting the ’042 application’s specification, found that the claimed method “may be performed by any suitable computer system.” Id. at *8 (quoting J.A. 52 ¶ 42 and citing J.A. 52 ¶ 41). The Board explained that the “operations of storing, analyzing, receiving, and writing data are primitive computer operations found in any computer system.” Id. (citing In re Katz Interactive Call Processing Pat. Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011)).
    Once they scrub your claim of just about everything except the barebones computer elements, it is trivial for them to declare (based upon your own specification, i.e., intrinsic evidence) that these additional elements represent nothing more than well-known, routine, and conventional. It was entirely predictable that they would do this – based upon years of case law. However, because you don’t understand how the case law is currently being applied, you don’t know how to make better arguments than the ones you did. This point aside, because the claims are about as bad as one can get when it comes to 101, you were going to be fighting an uphill battle no matter what you did.

    The point that neither B nor Anon seems to get, despite my many attempts to educate them, is that there are ways to successfully argue the CURRENT Federal Circuit case law that doesn’t involve trying to burn down the last 8 years of Federal Circuit jurisprudence. While most people on this blog (myself included) want those last 8 years burned down, only fools think that a single attorney with miniscule appellate experience is going to make that happen. Regardless, Killian could have 5 former clerks at the Federal Circuit working on this case and a $2M budget and the result would be the same. B complains that no one has ever won on this issue coming from the Board. If so, why the f’ would you have taken this case to the Federal Circuit? The far easier, cheaper, more likely-to-succeed route would have been to go back down to the Examiner with newer (and far better) claims. What attorney advises their client to take a sure loser to the Federal Circuit? Anon and B perhaps, but who else?

  • [Avatar for Anon]
    Anon
    November 13, 2022 09:29 am

    B,

    One can’t fix this level of ignorance.

    Absolutely correct.

    It’s intentional.

    Perhaps. but really not that important for my purposes.

    I am not here to instruct those who so not wish to be instructed.

    I do make comments so that those who WANT to learn, may learn.

    I also make comments to deride those with whom I disagree (after of course setting out why those who disagree with me are in error).

    This of course must be taken in the context of blogging – wherein there simply ARE those who are not interested in any type of exchange on the merits, and who would rather push their (propaganda) viewpoint with NO regard for any counter-points put up for discussion.

    Curious is – by far – one of the least curious repeat posters, as when he has a view that he likes, he has NO curiosity as to ANY competing view.

    Eligibility (and the self-inconsistent mess of jurisprudence created by the Supreme Court) in general and the case that you are involved with (with concerned) in particular are but two examples.

  • [Avatar for B]
    B
    November 12, 2022 04:49 pm

    @ Anon speaking of mount stupid, Curious noted, “Not even close. Berkheimer involves meeting the standard to get past summary judgement – a situation entirely missing from Killian.”

    Yet somehow Curious missed the underlying reason HP failed at summary judgment, i.e., there was no evidence to support the notion that various claims amounted to well-known, routine, and conventional activity.

    One can’t fix this level of ignorance. It’s intentional.

  • [Avatar for Anon]
    Anon
    November 12, 2022 08:59 am

    Translation: The view from Curious’ Peak of Mount Stupid is far better than your view (of the law).

    He is the epitome of that phrase.

  • [Avatar for Curious]
    Curious
    November 11, 2022 09:47 pm

    Dude, the CAFC’s case law is garbage.
    I don’t disagree. However, you still have to cook with those ingredients. Bemoan the lack of good ingredients all you want but that’s all you’ve got to work with. Unfortunately for you (and your clients), you don’t know how to cook.

    Choose Berkheimer and Killian wins under step one.
    Not even close. Berkheimer involves meeting the standard to get past summary judgement – a situation entirely missing from Killian.

    Choose Electric Power Group and Killian still wins under step two.
    Granted both the Federal Circuit and USPTO misapply Electric Power Group all the time. However, arguing Electric Power Group has never helped anyone. I have no idea why you would even want to argue it – again, because it gets misapplied all the time.

    I’ve already proved to Chen his failures, and Chen will be mocked for years to come.
    Delusions of grandeur – it is what you are best at.

    The fact you are so petty and vapid does not serve to prove anything except that you’re petty and vapid.
    I don’t care what you call me. I just know the law better than you. End of story.

  • [Avatar for B]
    B
    November 11, 2022 07:36 pm

    @ Curious “ One of the amusing things that B has probably never picked up on is that Anon (as best as I can tell) has never said that Killian’s claims were patent eligible based upon Federal Circuit case law or commented on the viability of any of B’s arguments.”

    Dude, the CAFC’s case law is garbage. Choose Berkheimer and Killian wins under step one. Choose Electric Power Group and Killian still wins under step two. Chen had to fabricate a new and idiotic theory of abstract, i.e., change the rules, to maintain a rejection.

  • [Avatar for B]
    B
    November 11, 2022 05:32 pm

    @ Curious “ This from the guy who got taken behind the woodshed by Chen.”

    Chen has the power. The fact Chen had to repeatedly lie and violate case law – some of which he wrote – only proves he lacks the integrity and intellect required of a judge. I’ve already proved to Chen his failures, and Chen will be mocked for years to come.

    The fact you are so petty and vapid does not serve to prove anything except that you’re petty and vapid.

  • [Avatar for Curious]
    Curious
    November 11, 2022 05:18 pm

    Keep it comin
    One of the amusing things that B has probably never picked up on is that Anon (as best as I can tell) has never said that Killian’s claims were patent eligible based upon Federal Circuit case law or commented on the viability of any of B’s arguments. I explicitly gave Anon an opportunity to do so below, and Anon didn’t take the bait.

    As I noted earlier, Anon works in ivory tower pronouncements — his comments rarely address the nitty gritty details of a particular case. He would rather complain about someone’s argument than present an alternative version of his own. I doubt this is unintentional.

  • [Avatar for Curious]
    Curious
    November 11, 2022 04:48 pm

    That’s exactly the point. Perhaps you just do not understand what Rule of Law means.
    You be you. Most people would continue the argument by: (i) identifying what they think the “Rule of Law” means and (ii) explaining why my arguments reflects a misunderstanding on that “Rule of Law.” However, like you ALWAYS do, you leave half (if not much more) of your argument unstated and/or unsupported. Arguing against you is like fighting a ghost. There is nothing of substance to attack. You make some half-explained comment and then disappear.

    I WILL be me, but that is merely something not good for you
    Whatever that means, which is a statement I could apply to a substantial portion of your comments over the years.

    I was planning to do a point-by-point response to everything you wrote but after doing a quick scan ahead I realized that at no point did you ever address anything substantive about the issue at hand – i.e., 35 USC 101. I almost got bamboozled by yet another Anon tactic – which is to wade into the weeds and never come out again. I’m not interested in that game. Since you aren’t interested in discussing the practice of law, I’ll pass.

    You would think that Curious would at least admit that the CAFC is not allowed to replace a PTAB rejection with a new one of their own imagination.
    They didn’t. They addressed all of the points you raised. That isn’t raising a new ground. And BTW, I can all but guarantee you that the vast majority of YOUR arguments were not presented before the Board and consequently you essentially waived those arguments. They did you a favor by actually addressing those arguments.

    When the law “as applied” leads to 100% of Alice-Mayo 101 appeals from the PTAB to be affirmed, something is wrong.
    It isn’t just one thing. What is wrong includes bad case law, bad attorneys, and bad claims. The USPTO can be beaten. I’ve done it. However, taking a bad case to the Federal Circuit is not how you beat them. Moreover, a smart attorney knows it is easier to win against the Examiner than it is to win against the Federal Circuit. A smart attorney would have taken the claims back down to the Examiner to see if he could prevail there instead of tilting at windmills and wasting patent term. Are you really acting in your client’s best interest when your actions do little more than waste his potential patent term? This is a point that Anon (yet again) ignores when he talks about ethical obligations. Tilting at windmills takes time, and an inventor does not have unlimited time to obtain a patent.

    This from the guy who admitted on this very forum that 100 examiners in TC 3600 are clueless about “abstract ideas” and claims, and who spent the last 8 years clueless that “inventive concept” has no definition and is therefore capricious.
    This from the guy who got taken behind the woodshed by Chen.

  • [Avatar for B]
    B
    November 11, 2022 01:03 pm

    @ primary examiner “Watching a smart, competent, honest attorney destroy a deplorable triple alliance – i.e. a dishonest, incompetent, delusional pair, and an obnoxious, pompous entity (who most likely enjoys the smell of his . . . ”

    This from the guy who admitted on this very forum that 100 examiners in TC 3600 are clueless about “abstract ideas” and claims, and who spent the last 8 years clueless that “inventive concept” has no definition and is therefore capricious.

    Is there a special psych profile the USPTO administers that one needs to fail before the USPTO assigns such failures to a business methods art unit?

  • [Avatar for B]
    B
    November 11, 2022 12:42 pm

    @ Anon “Absolute nonsense – given that “as applied” IS at issue”

    BAM!!!

    When the law “as applied” leads to 100% of Alice-Mayo 101 appeals from the PTAB to be affirmed, something is wrong. The fact that some people are comfortable with shredding the Constitution, the APA, and the statutory Patent Law is disturbing.

    When the law “as applied” leads CAFC opinions (issued weeks apart and/or by the same judge) that directly contract one another, something is wrong. The fact that some people wont admit that there is no “rule of law” on Alice-Mayo is predictable, but still disturbing.

    Rule of law: “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws” https://www.bing.com/search?q=%22rule+of+law%22

  • [Avatar for primary examiner]
    primary examiner
    November 11, 2022 12:41 pm

    Watching a smart, competent, honest attorney destroy a deplorable triple alliance – i.e. a dishonest, incompetent, delusional pair, and an obnoxious, pompous entity (who most likely enjoys the smell of his own f*arts) is priceless… Keep it comin 😀

  • [Avatar for B]
    B
    November 11, 2022 12:22 pm

    @ Anon

    Curious said: “When it comes to 101, the Federal Circuit follows the rule of law most of the time.”

    How does one debate with such ignorance? How does one converse with a guy who feels comfortable in reinterpreting idiotic CAFC science fantasy holdings into something they are not?

    You would think that Curious would at least admit that the CAFC is not allowed to replace a PTAB rejection with a new one of their own imagination.

    You would at least think Curious would at least admit that the CAFC is required to give people an opportunity to be heard on a new ground of rejection, and that it is not okay for judges to repeatedly lie in an opinion.

    No – all that is “following the rule of law” to Curious

    As to primary examiner, his mistakes are profoundly bad but understandable. P.E. lives in the echo chamber of TC3600 where fundamental understandings of actual law and formal logic are not particularly important, and where people don’t suffer the consequences of their own horribly bad judgement.

  • [Avatar for Anon]
    Anon
    November 11, 2022 12:09 pm

    No one is disagreeing that the two different paths are inconsistent with each other. That isn’t the point.

    That’s exactly the point. Perhaps you just do not understand what Rule of Law means.

    when you can refer to an unparseable analogy – the meaning of which is known to a single person?

    The analogy to the Peak of Mount Stupid is hardly unparseable. I WILL be me, but that is merely something not good for you.

    To my “Nice strawman – have I ever indicated otherwise?”
    Your reply of, “Yes, all the time.” is simply false. I bet that you did not even bother noting that you attempted a strawman and wanted to switch to a completely different ethical matter – and that I called you out for this nonsense. Instead, you simply doubled down.

    You are not very good at this.

    You’ve shown no interest in discussing the law – AS IT IS BEING APPLIED.

    Absolute nonsense – given that “as applied” IS at issue (in being a Gordian Knot).

    Again, you seem to not understand this thing called blogging about patent law.

    Everything you write ignores the actual PRACTICE of law.

    Not at all – you continue to confuse your obsequies kiss-arse approach with fighting for a client’s rights.
    Your comments reflect those of an ivory tower professor – written at an obscure high-level with little practicality behind them.

    Now I know that you are out of touch. Rather than mindlessly double down, take a moment and recognize how very wrong you are.

  • [Avatar for Curious]
    Curious
    November 11, 2022 10:44 am

    Further, the notion of “two different paths” is NOT congruent with the Rule of Law when – as here – the two different paths are eminently inconsistent with each other. “most of the time” is clearly NOT sufficient
    No one is disagreeing that the two different paths are inconsistent with each other. That isn’t the point. The point is that there is one path that has allowed the Federal Circuit to kill most claims under 101 and they (most) frequently take that path.

    Your Peak Of Mount Stupid may indeed hold a glorious view (in your mind), but you constantly misstep when you wander from your peak.
    Classic Anon. Why clearly respond to someone when you can refer to an unparseable analogy – the meaning of which is known to a single person? However, you be you.

    Nice strawman – have I ever indicated otherwise?
    Yes, all the time. You’ve shown no interest in discussing the law – AS IT IS BEING APPLIED. I cannot recall you ever discussing how you would respond to a rejection under 101 using the Federal Circuit’s case law or the 2019 Patent Eligibility Guidelines. Everything you write ignores the actual PRACTICE of law. I’m a practicing patent attorney, and my comments reflect that. Your comments reflect those of an ivory tower professor – written at an obscure high-level with little practicality behind them.

    Wake up son.
    Go to sleep grandpa. People are actually trying to get things done. You have shown to be of little to no help for years now – all you do is complain and offer up next to nothing in terms of practical solutions.

    I’ve got the audio of me before three astonished Fed. Cir. judges to prove it.
    Delusional is a term I’ve applied to you and Concerned many times. I see you haven’t disappointed me.

    It is now.
    LOL. This is from MPEP 2106.05(d):
    2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity.Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 (“The written description is particularly useful in determining what is well-known or conventional”); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as “well-known”, “common” and “conventional”); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as “either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.”)
    Notice how those cases cited are around 5 or 6 years old, yet you think you raised that issue for the first time. LOL.

    What precedent is that?
    You have no interest in knowing, so why do you ask? You’ve been told multitudes of time yet you still believe there is no precedent. You really are hopeless.

    So far you’re batting 0.000
    Remind me again, what is your batting average at the Federal Circuit?

  • [Avatar for Anon]
    Anon
    November 11, 2022 10:06 am

    Curious lives up to his moniker (here, not in a good way):
    Both B and yourself consistently misrepresent my positions. I have articulated better arguments that criticize the Federal Circuit’s application of 101 than either of you two. Anon cannot articulate anything clearly so by default my arguments are better (more clearly stated) than his,

    AND

    When it comes to 101, the Federal Circuit follows the rule of law most of the time.

    AND

    Now there are other paths that they could follow to uphold the validity of a claim under 101, but those paths are definitely less trodden (and oftentimes inconsistent with the well-worn path typically applied by the Federal Circuit). The fact that I can recognize the existence of those different paths

    That last sentence is incomplete.
    Further, the notion of “two different paths” is NOT congruent with the Rule of Law when – as here – the two different paths are eminently inconsistent with each other. “most of the time” is clearly NOT sufficient.

    Somehow you think that my articulation of the Gordian Know is not “clear,” – but this is only highlighting YOUR deficiencies and not mine. Your Peak Of Mount Stupid may indeed hold a glorious view (in your mind), but you constantly misstep when you wander from your peak.

    Ethically, I am tasked to provide my client with zealous representation.

    Nice strawman – have I ever indicated otherwise? Are you confusing one ethical duty (which I have NOT questioned) with another ethical duty (which you do not address)?

    I have never indicated that this other ethical duty REQUIRES you to “tilt at an armor-clad windmill to the detriment of [your] client.”

    Again, the deficiency here is YOURS.

    However, following incompetents to war is not a commonly recognized leadership principle.

    You misunderstand (and project) what “leadership” means and what “following” means.

    Wake up son.

  • [Avatar for B]
    B
    November 10, 2022 01:56 pm

    @ Curious “Delusions of misplaced grandeur, I see.”

    I’ve got the audio of me before three astonished Fed. Cir. judges to prove it.

    “Using intrinsic evidence (e.g., a specification) to supply evidence of elements being the well-understood, routine, and conventional is pretty well known.”

    It is now.

    You’re welcome.

  • [Avatar for B]
    B
    November 10, 2022 01:52 pm

    @ Curious “I have read the Federal Circuit’s precedent. It was painfully easy to predict the outcome of Killian based upon that precedent.”

    What precedent is that? What precedent allows for judges to engage in wholesale fantasy while violating s706 of the APA, Supreme Court precedent, and due process?

    So far you’re batting 0.000

  • [Avatar for B]
    B
    November 10, 2022 01:49 pm

    @ primary examiner “Here here…I am sure they will attack, insult, and deflect. Anything but listen, acknowledge and learn.”

    One word: “projection”

  • [Avatar for primary examiner]
    primary examiner
    November 10, 2022 01:40 pm

    “I’m curious to see how B/Concerned will react to that latest front page article using Killian as an example of how certain patents would still be invalidated under the Tillis proposal.”

    Here here…I am sure they will attack, insult, and deflect. Anything but listen, acknowledge and learn.

  • [Avatar for Curious]
    Curious
    November 10, 2022 01:27 pm

    You really have NOT been paying attention, have you?
    I have read the Federal Circuit’s precedent. It was painfully easy to predict the outcome of Killian based upon that precedent. Yet you say that I haven’t been paying attention. BTW, I see you didn’t answer my straight-forward question of “Based upon current Federal Circuit precedent, did the Federal Circuit properly affirm the rejection of Concerned’s claims?”. I didn’t think you would. Straight-forward answers aren’t your thing.

    In re Killian violates the following SCOTUS Holdings:

    Plus In re Killian violates:

    Plus Killian violates 5th Amendment due process, s706 of the APA, and the laws of physics as defined by modern science.

    Looks like a slam-dunk petition for rehearing/petition for cert then. Let us know how it all works out.

    The PTAB told us that we did not understand the Berkheimer decision
    You don’t. Berkheimer is pretty straight-forward and it is easy to explain why Berkheimer provides very little help for your situation. I’ve presented that explanation before so I won’t repeat myself.

    FYI, I single-handedly got the CAFC to recognize that the SCOTUS’ Mayo holding was based on intrinsic evidence. It’s recorded for posterity.
    Delusions of misplaced grandeur, I see. Using intrinsic evidence (e.g., a specification) to supply evidence of elements being the well-understood, routine, and conventional is pretty well known. And even if it wasn’t, so what? It is not like you found the Rosetta stone.

    Further (and as B — among many — has put to Curious numerous times now), that “established process” BEING challenged is a lack of following the Rule of Law, which is something that should offend EVERY practicing attorney.
    Both B and yourself consistently misrepresent my positions. I have articulated better arguments that criticize the Federal Circuit’s application of 101 than either of you two. Anon cannot articulate anything clearly so by default my arguments are better (more clearly stated) than his. B doesn’t understand Federal Circuit precedent so he cannot effectively argue against it.

    When it comes to 101, the Federal Circuit follows the rule of law most of the time. They rely upon past precedent to render decisions that are fairly predictable. However, this doesn’t mean that the law isn’t hopeless inconsistent and two different panels can come up with different results because they’ve selected two different lines of precedent to follow. It is a fact that the Federal Circuit most often (and that includes all 12 judges) follows an “established process” that makes it trivially easy to invalidate a claim under 101. Now there are other paths that they could follow to uphold the validity of a claim under 101, but those paths are definitely less trodden (and oftentimes inconsistent with the well-worn path typically applied by the Federal Circuit). The fact that I can recognize the existence of those different paths

    Ethically, I am tasked to provide my client with zealous representation. While you may think that requires me to tilt at an armor-clad windmill to the detriment of my client, I disagree with that approach. While I would be happy to have this windmill destroyed, my client(s) is/are in no position to do so. As such, my task (to get a result that is best for my client) is to understand how this windmill works and to find ways around it.

    At the end of the day, you and B will be standing over the bloodied corpses of your clients while I have helped my client safely and successfully achieved his hoped-for objective. When that happens, I don’t give 2 schitzs when you two come complaining to me — “Hey Curious, you are a traitor for not helping us out!!” I served my client and got a good result. I feel no shame in doing that. That being said, neither of you know what I have done to undermine that windmill, which is likely just as much (if not more) than either of you.

    On a newer thread, the writers assert, “Challenging established processes is a commonly recognized leadership principle.
    However, following incompetents to war is not a commonly recognized leadership principle. Rather, it is a way to get one’s head handed to yourself. On that basis, I’ll decline.

    I’m curious to see how B/Concerned will react to that latest front page article using Killian as an example of how certain patents would still be invalidated under the Tillis proposal.

  • [Avatar for B]
    B
    November 10, 2022 09:40 am

    @ primary examiner “Good luck trying, if this is your and concerned’s end-goal.”

    FYI, I single-handedly got the CAFC to recognize that the SCOTUS’ Mayo holding was based on intrinsic evidence. It’s recorded for posterity.

    As to Bilski and Alice Corp., one need only read Alice Corp. for confirmation. Now if you’re suggesting that the CAFC doesn’t want to follow SCOTUS precedent (something Curious and the PTAB have in common), then you may be right.

  • [Avatar for Anon]
    Anon
    November 10, 2022 07:35 am

    On a newer thread, the writers assert, “Challenging established processes is a commonly recognized leadership principle.

    (something for Curious to contemplate)

    See: https://ipwatchdog.com/2022/11/09/moving-toward-design-patent-bar-progress-ip-community/id=152828/

    Further (and as B — among many — has put to Curious numerous times now), that “established process” BEING challenged is a lack of following the Rule of Law, which is something that should offend EVERY practicing attorney.

  • [Avatar for concerned]
    concerned
    November 9, 2022 11:55 pm

    Practically everyone that comes on this forum and posts a comment states Berkheimer is a joke, that nobody at the CAFC is applying their own decision.

    The PTAB told us that we did not understand the Berkheimer decision, yet offered no explanation. It is self evident the PTAB understands Berkheimer, the PTAB switched rejection reasons to avoid addressing my evidence.

    Mr. Quinn has it 100% correct when he stated more people should stand up to this nonsense going on in the patent environment. There has to be a hidden agenda as to why things are happening to patent prosecution and patent cancellation.

  • [Avatar for B]
    B
    November 9, 2022 06:40 pm

    @ Anon

    Curious states, “As anyone should know, the Federal Circuit is
    bound by its own precedent. It cannot overrule its own precedent
    outside of an en banc decision.

    Half of the CAFC wouldn’t know precedent if it jumped up their collective robes and exploded. The same half violates their own precedent on a regular basis.

    Hey, wasn’t Berkheimer all about requiring evidence under step one of A-M? Taranto violated the holding of that case in weeks with his Investpic holding, and Taranto was on the Berkheimer panel.

    In re Killian violates the following SCOTUS Holdings:

    Alice Corp. v. CLS Bank
    Mayo v. Prometheus
    Bilski v. Kappos
    Gonzalez v. Thomas
    Motor Vehicle Mfgrs. Assn. v. State Farm
    Diamond v. Diehr
    Singleton v. Wulff
    Burlington Truck Lines, Inc. v. United States
    Securities & Exchange Comm’n v. Chenery Corp.

    Plus In re Killian violates:

    Berkheimer
    McRO
    Enfish
    Electric Power Group
    DDR Holdings
    In re Sang-Su Lee
    In re Oetiker
    Aatrix
    Finjan

    Plus Killian violates 5th Amendment due process, s706 of the APA, and the laws of physics as defined by modern science.

  • [Avatar for Anon]
    Anon
    November 9, 2022 05:56 pm

    primary examiner,

    I will take my moniker any day of the week and twice on Sunday over yours.

  • [Avatar for Anon]
    Anon
    November 9, 2022 05:55 pm

    Curious states, “As anyone should know, the Federal Circuit is bound by its own precedent. It cannot overrule its own precedent outside of an en banc decision.

    You really have NOT been paying attention, have you?

    Of course, in a perfect world, your statement would carry weight.

    But in this reality, the Gordian Knot created by the Supreme Court has been added to – extensively by the CAFC that has entirely disregarded your statement.

  • [Avatar for concerned]
    concerned
    November 9, 2022 04:26 pm

    Primary Examiner:

    It is also an easy visual to see a government employee not assisting when asked.

    We asked you for suggestions on my claims and you passed. You do work for the public that pays their patent fees?

    Recent poll: Only 8% of government employees do their job. Where are you: the 8% or the 92%?

  • [Avatar for primary examiner]
    primary examiner
    November 9, 2022 03:40 pm

    Imagine back in 1773. It would be Anon, B and I throwing that tea into the Boston harbor. Standing up to authority is worth the fight if the cause is right. Others would be calling us fools for taking on the King.

    Now THAT’S a visual :D:D
    Especially fighting alongside someone who calls themselves ‘anon’…oh boy…

  • [Avatar for Curious]
    Curious
    November 9, 2022 03:28 pm

    it is not supported by the law as it had been written.
    We all agree on that. However, your view is not supported by the law as it has been interpreted. All laws get interpreted, and views based upon those interpretations are not ridiculous.

    I still will not have a patent perhaps, but I will know I stood up to legislating from the bench.
    You could have had a patent had you employed a talented patented attorney. However, your specification and original claims were terrible from the beginning.

    My very fist IPWatchdog article “Can I hold on long enough before the insanity stops?” may be very spot on.
    Personally, I don’t see 101 getting fixed for decades. Big Tech is too powerful. I hope I’m wrong, but in the meantime, I will work within the constraints placed upon us.

    Where does the MPEP require an improvement to “anything else”?
    Neither the statute, nor the case law, nor the MPEP require an improvement. However, if you want to get past an examiner, it is damn helpful to show an improvement to technology so as to get past Prong Two of Revised Step 2A.

    As much as I trash talk the judiciary (which deserves it) you’ve never heard me badmouth the examination corp
    Good for you. I trash examiners all the time. Many of them just do what they are told without thinking. That’s a different type of incompetence than willingly misreading the law, which is common at the Federal Circuit.

    The PTAB was too stupid to realize concerned’s process could not be performed all by mental steps, and the CAFC had to violate its own precedent and the precedent of the Supreme Court to maintain the PTAB’s rejection.
    Not “all” need be performed by mental steps in order to reject the claims.

    Please, tell me the difference b/t Berkheimer and Investpic. I can sum it up in 3 words.
    Claim 1 of Investpic:
    1. A method for calculating, analyzing and displaying investment data comprising the steps of:
    (a) selecting a sample space, wherein the sample space includes at least one investment data sample;
    (b) generating a distribution function using a re-sampled statistical method and a bias parameter, wherein the bias parameter determines a degree of randomness in a resampling process; and,
    (c) generating a plot of the distribution function.

    Not much there … at all. Regardless, in Berkheimer, there were factual allegations that the combination of elements were not well-understood, routine, and conventional. To defeat a motion for summary judgement (or under 12b6), all alleged facts must be construed in a light most favorable to the non-movant. In this instance, that was enough to vacate the summary judgment. As the Court wrote “We do not decide today that claims 4-7 are patent eligible under § 101. We only decide that on this record summary judgment was improper, given the fact questions created by the specification’s disclosure.”

    You know what never existed before concerned’s invention? A way to solve the problem for getting disabled people their benefits according the THE DETAILS of concerned’s claims. Oh, but it’s okay to ignore 95% THE DETAILS of a claim, then gratuitously declare the remainder “abstract” while having no idea of what an inventive concept is.
    Again, B does not understand the law as it is being applied. As the law is applied, those limitations that recite the abstract idea are first identified. Those limitations are then not considered under Step 2B. The way to solve the problem for getting disabled people their benefits is the abstract idea. The remaining portions are all generic computer stuff. This is why the application was rejected.

    The PTAB and CAFC ignored ever word in concerned’s 440 word claim 1 except “computer.” If that is a valid test of patent eligibility, nothing is patentable.
    Not entirely accurate. However, what they ignored were those things that they thought could be performed mentally. There wasn’t much left to Concerned’s claim after that.

    Hey, if a patent claim is not anticipated and non-obvious, the patent claim is not conventional, routine, and conventional, right?
    That line of reasoning was addressed by the Federal Circuit years and years ago. Where were you? The line of reasoning would have saved Alice – it didn’t.

    Judge Taranto declared in Electric Power Group that an inventive concept included a process that included a new type data or new type of processing.
    No he didn’t. He wrote “The claims in this case do not even require a new source or type of information, or new techniques for analyzing it. … As a result, they do not require an arguably inventive set of components or methods, such as measurement devices or techniques, that would generate new data.” He implied that new type/source of data or a new technique for analyzing the data might be enough but didn’t outright state that it was. And even if he did, it would have been dicta. Regardless, this is just another example of your sloppy descriptions of the law.

    However, concerned’s claims do use a new type of data to identify the people at issue.
    New type of data? What would that be?

    Then again, Investpic had a new form of data processing, but Judge Taranto decided that the new type of processing was part of the abstract.
    So you are admitting that based upon the Court’s precedent (Investpic came out in 2018), any argument about Concerned’s new type of processing was doomed?

    BTW, I still can’t get the Federal Circuit to admit that Alice Corp. and Bilski were decided based on objective extrinsic evidence.
    Because they weren’t. The Supreme Court just made up the evidence (or didn’t see a need for evidence).

    It would be really interesting if the points put on the table for discussion were actually addressed in a manner to reach finalization.
    It would be really interesting if Anon ever made a direct point or asked a direct question instead of dancing around the campfire with a blanket issuing smoke signals that no one but Anon understands the meaning of. Why are you afraid to ask a direct question? As I have pointed out many times before. I wholeheartedly disagree with how the Federal Circuit has interpreted 101. However, that doesn’t prevent me from understanding (i) how the Federal Circuit is applying its own case law and (ii) why, based upon the Federal Circuit’s case law, that Concerned’s claims were easily rejected under 101.

    Let me give you an example of asking a direct question: “Based upon current Federal Circuit precedent, did the Federal Circuit properly affirm the rejection of Concerned’s claims?” This question does ask you to opine upon whether the Federal Circuit’s precedent is correct or not (e.g., whether the Federal Circuit has properly applied Alice or Diehr). As anyone should know, the Federal Circuit is bound by its own precedent. It cannot overrule its own precedent outside of an en banc decision.

  • [Avatar for concerned]
    concerned
    November 9, 2022 02:51 pm

    Anon and B: Thank you for all your hard work and fight!

    B: No apologies needed, as hard as you have been working, how do you even keep going?

    Imagine back in 1773. It would be Anon, B and I throwing that tea into the Boston harbor. Standing up to authority is worth the fight if the cause is right. Others would be calling us fools for taking on the King.

    Nothing new under the patent sun.

  • [Avatar for B]
    B
    November 9, 2022 12:49 pm

    @ Anon “At November 9, 2022 11:48 am – you do mean “Curious” as opposed to “concerned,” right?”

    Absolutely, with my apologies to concerned

    I was up to the wee hours with work

  • [Avatar for Anon]
    Anon
    November 9, 2022 12:10 pm

    At November 9, 2022 11:48 am – you do mean “Curious” as opposed to “concerned,” right?

  • [Avatar for B]
    B
    November 9, 2022 11:55 am

    @ Judge Rader

    As I have said many times, you were THE GUY who foresaw all this nonsense from day one.

    What is most disappointing is how some judges have sacrificed their integrity and sense of personal responsibility when deciding Alice-Mayo cases.

  • [Avatar for B]
    B
    November 9, 2022 11:48 am

    @ Anon “It would be really interesting if the points put on the table for
    discussion were actually addressed in a manner to reach finalization.”

    Unfortunately, Chen, Taranto, Reyna, Hughes et al. would rather twist their ears off than actually address these issues.

    Concerned is as hopeless as he is petty and whiny, but I think it’s possible that p.e. might break his imperial conditioning given time.

  • [Avatar for B]
    B
    November 9, 2022 11:38 am

    @ primary examiner “Ask 100 business methods examiners, they will all tell you this statement is incorrect.”

    From Alice Corp.: “At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. Mayo, 566 U. S., at ___ (slip op., at 2). At some level, “all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id., at ___ (slip op., at 2). Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept.”

    Obviously, these 100 business methods examiners need retraining

  • [Avatar for primary examiner]
    primary examiner
    November 9, 2022 11:20 am

    “Hint: EVERY PATENT recites an abstract concept. ”
    Ask 100 business methods examiners, they will all tell you this statement is incorrect.

    “However, concerned’s claims do use a new type of data to identify the people at issue.”
    Ask 100 business methods examiners, they will all tell you using a new type of data to perform a process (that recites an abstract idea), they will all tell you it will not change their 101 determination.

    “BTW, I still can’t get the Federal Circuit to admit that Alice Corp. and Bilski were decided based on objective extrinsic evidence.”
    Good luck trying, if this is your and concerned’s end-goal.

  • [Avatar for Anon]
    Anon
    November 9, 2022 11:18 am

    Wash Rinse Repeat

    It would be really interesting if the points put on the table for discussion were actually addressed in a manner to reach finalization.

    (yes, I am looking at you “Curious” and you “primary examiner” – as each in your own ways are NOT “getting it” as to what the issues to which resolution is really needed (and why)).

  • [Avatar for B]
    B
    November 9, 2022 11:05 am

    @ primary examiner “Numerous applications that recite abstract concepts do receive patents. I would have been shocked if Concerned’s claims passed the current 101 eligibility guidance.”

    Hint: EVERY PATENT recites an abstract concept. The Supreme Court recognized this fact in Alice Corp. while warning the lower courts to “tread carefully” – a warning that was immediately ignored by the intellectually challenged incapable of reading an entire Supreme Court decision.

    Hey, if a patent claim is not anticipated and non-obvious, the patent claim is not conventional, routine, and conventional, right?

    BTW, let me tell you how lackluster and stupid the USPTO guidelines are. Judge Taranto declared in Electric Power Group that an inventive concept included a process that included a new type data or new type of processing. Look it up. However, concerned’s claims do use a new type of data to identify the people at issue.

    Ergo even under the idiotically decided holding of EPG, concerned’s claims pass the idiotic patent eligibility test set down by Judge Taranto. Then again, Investpic had a new form of data processing, but Judge Taranto decided that the new type of processing was part of the abstract.

    RIGHT????
    BTW, I still can’t get the Federal Circuit to admit that Alice Corp. and Bilski were decided based on objective extrinsic evidence.

  • [Avatar for primary examiner]
    primary examiner
    November 9, 2022 10:03 am

    “The PTAB and CAFC ignored ever word in concerned’s 440 word claim 1 except “computer.” If that is a valid test of patent eligibility, nothing is patentable.”
    Numerous applications that recite abstract concepts do receive patents. I would have been shocked if Concerned’s claims passed the current 101 eligibility guidance.

  • [Avatar for B]
    B
    November 9, 2022 09:42 am

    @ primary examiner “A car and airplane, and curing a horrible disease do not recite an abstract idea. Do you not understand this?”

    Apparently, you don’t understand the slightest of what you speak.

    First, part of Alice-Mayo is an attack on treatments for horrible diseases.

    Go figure.

    Second, aren’t cars and airplanes well-known, routine, and conventional? Why, YES, they are. These things have been around since before we were born.

    You know what never existed before concerned’s invention? A way to solve the problem for getting disabled people their benefits according the THE DETAILS of concerned’s claims. Oh, but it’s okay to ignore 95% THE DETAILS of a claim, then gratuitously declare the remainder “abstract” while having no idea of what an inventive concept is.

    The PTAB and CAFC ignored ever word in concerned’s 440 word claim 1 except “computer.” If that is a valid test of patent eligibility, nothing is patentable.

  • [Avatar for B]
    B
    November 9, 2022 09:30 am

    @ primary examiner ” Difference is those applicants understand the current law, their invention, and have figured out how to claim their invention (if applicable) so it stands a chance.”

    I’m 100% sure the inventors understand their inventions, and no one understands the law because the CAFC constantly contradicts itself one week to the next. I’ve made herculean efforts to force clarification from the courts. The responses were outright lies and lies of omission.

    Hey, do you actually believe there were no wireless garage door openers prior to 2003, because you’d be required to if you believe Judge Chen’s Chamberlain decision.

    With that said, how do you reject under Alice-Mayo when you have no idea of what an “inventive concept” is?

  • [Avatar for primary examiner]
    primary examiner
    November 9, 2022 09:15 am

    “If the USPTO wasn’t about allowing business methods, then why have all those business methods AUs?”
    I’ve allowed numerous business methods applications. Difference is those applicants understand the current law, their invention, and have figured out how to claim their invention (if applicable) so it stands a chance.

  • [Avatar for primary examiner]
    primary examiner
    November 9, 2022 09:13 am

    “The automobile, airplane, curing any horrible disease, etc. did not improve any other thing. ”
    A car and airplane, and curing a horrible disease do not recite an abstract idea. Do you not understand this? :/

    “Where does the MPEP require an improvement to “anything else”?”
    Do a keyword search of the MPEP and you will find the relevant sections. Why are you arguing it’s not in there? Your thoughts (what you think should be there or not) and actual facts are two different things. Facts to you don’t mean much, your thoughts get in the way.

  • [Avatar for B]
    B
    November 9, 2022 08:55 am

    @ Curious “Assuming this is accurate, what the Board and Federal Circuit determined is that this could be performed mentally and all of the “non-mental” aspects of your invention don’t amount to an invention because they are all well-understood, routine, and conventional.”

    The PTAB was too stupid to realize concerned’s process could not be performed all by mental steps, and the CAFC had to violate its own precedent and the precedent of the Supreme Court to maintain the PTAB’s rejection.

    BTW, the claims in Diehr (outside the mental steps processing) was 100% welk-known, routine, and conventional. Opening a rubber mold? Been done for over 100 years. Collecting data? Oh, we can’t look at that.

    DDR Holdings, McRO, Enfish, Berkheimer – none of those are all mental steps, right?

    Please, tell me the difference b/t Berkheimer and Investpic. I can sum it up in 3 words.

  • [Avatar for B]
    B
    November 9, 2022 08:41 am

    @ primary examiner “Even assuming your process is a useful process, not all useful processes will pass the current 101 requirements. Your process can be performed using generic computers and network, and apart from improving a benefit and insurance- related process, is not improving anything else, as required by the mpep”

    Where does the MPEP require an improvement to “anything else”?

    Where does Title 35 require an improvement to “anything else”?

    Where does 37 C.F.R. require an improvement to “anything else”?

    If the USPTO wasn’t about allowing business methods, then why have all those business methods AUs?

    Just because the CAFC is populated by a bunch of less than bright people doesn’t mean the USPTO must line up for lobotomies. As much as I trash talk the judiciary (which deserves it) you’ve never heard me badmouth the examination corp. Why, b/c b/t the good and the not-so-good examiners there’s a collective common sense and honesty (outside business methods). Examiners are trained by their classwork and previous employment to think logically and consistently, and so naturally resist drinking the legal Kool Aid when said beverage is contaminates with judicially flavored feces that asks you to believe 2+2=5.

    It takes a fool or an attorney to believe that the CAFC’s Alice-Mayo jurisprudence is remotely credible.

  • [Avatar for concerned]
    concerned
    November 9, 2022 07:39 am

    Primary Examiner: “Even assuming your process is a useful process, not all useful processes will pass the current 101 requirements. Your process can be performed using generic computers and network, and apart from improving a benefit and insurance- related process, is not improving anything else, as required by the mpep”

    I agree with your statement on how current prosecution is being handled. Not only is this view ridiculous, it is not supported by the law as it had been written.

    The automobile, airplane, curing any horrible disease, etc. did not improve any other thing. What invention improves multiple fields of commence? Why would multiple improvements to other areas even be a patent requirement? The same is not even implied in s101.

    The same goes for using a generic computer on a process that is not abstract (my underlying business method was never performed in commerce.) Who would care if cancer is solved using a generic computer with a new medical approach?

    The above ridiculous thinking is worth fighting to change, even if B is up against all odds. The above situations are not even logical.

    I now have a precedential decision for taking a stand against insanity. One day the nonsense has to stop. I still will not have a patent perhaps, but I will know I stood up to legislating from the bench. I did not go along to get along with insanity. My very fist IPWatchdog article “Can I hold on long enough before the insanity stops?” may be very spot on.

    The patent may not be relevant to accomplishing the goal of helping people with disabilities. It may turn out just to be a distraction. And if I do accomplish helping many people, it will be self evident that the process was useful and the approach new, with or without a patent.

  • [Avatar for Curious]
    Curious
    November 8, 2022 08:11 pm

    My claims are about the SSDI benefits that both the Social Security Administration AND parents were involved in processing and STILL overlooked the SSDI award to the child.
    Assuming this is accurate, what the Board and Federal Circuit determined is that this could be performed mentally and all of the “non-mental” aspects of your invention don’t amount to an invention because they are all well-understood, routine, and conventional. What you described above may not be routine and conventional, but under Step 2B, that doesn’t count. Only what the Court determined to be non-abstract gets evaluated under Step 2B.

    Evidence matters. If the USPTO, PTAB, CAFC and YOU ever bothered looking at my evidence on record, perhaps people could intelligently understand what was accomplished by my claims.
    Evidence matters only matters when it is relevant. Your evidence, at best, shows the abstract aspects of your invention are not well-understood, routine, and conventional. However, that evidence (and showing supported by that evidence) is not relevant to the issues being looked at by the Court. You and B make a big deal about the evidence, but apparently B doesn’t understand the law well enough to recognize that this evidence (and what it shows) doesn’t matter under the Court’s precedent.

    Hence the big disconnect: You trivialize my invention. People in my field KNOW what I accomplished, hence, the interest from. CGI and other many other important people. Two State cabinet level Medicaid officials personally told me they tried to solve this very problem. Others congratulate me.
    Big deal. No one cares. There was a Federal Circuit case regarding a patent in which genes involving a disease were identified. The Federal Circuit said this was a great invention – the kind of invention we should be promoting. However, they also said that based upon the current law they were compelled to invalidate the patent under 101.

    You and B seem confused as to why these claims were invalidated. I’ve been trying to explain why for a very long time. However, you both are in a state of denial. You can either learn from your mistakes or continue to tilt against armor-clad windmills. Your choice.

  • [Avatar for Primary examiner]
    Primary examiner
    November 8, 2022 05:29 pm

    “You trivialize my invention. People in my field KNOW what I accomplished, hence, the interest from. CGI and other many other important people. Two State cabinet level Medicaid officials personally told me they tried to solve this very problem. Others congratulate me.”

    Even assuming your process is a useful process,not all useful processes will pass the current 101 requirements. Your process can be performed using generic computers and network, and apart from improving a benefit and insurance- related process,is not improving anything else, as required by the mpep (case in which you would have a higher chance of obtaining a patent).
    The fact that you get congratulations and interest does not change these facts.

  • [Avatar for concerned]
    concerned
    November 8, 2022 04:47 pm

    Curious:

    Looking at the parents is part of the SSDI rules. However, people are still overlooked for various reasons that have not been resolved until my solution.

    My claims are not about the SSDI benefits that were developed by looking at the parents. My claims are about the SSDI benefits that both the Social Security Administration AND parents were involved in processing and STILL overlooked the SSDI award to the child.

    Evidence matters. If the USPTO, PTAB, CAFC and YOU ever bothered looking at my evidence on record, perhaps people could intelligently understand what was accomplished by my claims.

    Hence the big disconnect: You trivialize my invention. People in my field KNOW what I accomplished, hence, the interest from. CGI and other many other important people. Two State cabinet level Medicaid officials personally told me they tried to solve this very problem. Others congratulate me.

  • [Avatar for Curious]
    Curious
    November 8, 2022 04:08 pm

    the process solved a long term problem with a solution never used in commerce
    This doesn’t make your claims special.

    I solved a problem even the Social Security Administration and all its working professionals and experts could not solve since the inception of the SSDI program in 1956.
    I find it very hard to believe that no one ever thought up of investigating a person’s eligibility based upon their marriage or parents. Actually, its part of the rules so they knew.

    Belittling my invention directly insults all of the hard working people in my field and suggests that they are stupid for not seeing this solution sooner.
    My guess is that someone did but didn’t publish it or that it was published in a source not available to the examiner. Examiners in 3600 don’t work really hard to find good art – they don’t need to be cause they can reject everything under 101. As such, the fact that the Examiner hasn’t found prior art doesn’t mean that there is none to be found.

    Mr. Quinn stated in my first article that it is a shame I am not getting a patent.
    I would never speak to Gene’s intentions. However, one possibility is that his comment reflected his thoughts as to how 35 USC 101 was being interpreted and not necessarily reflective of what he thought about your invention.

    Also ask yourself: How can a claim be unanticipated and non-obvious under 102/103 and “well-known, routine, and conventional” under 101?
    If you don’t know the answer to this (as your question implies), then you don’t understand how the law is being applied. One can understand how the law is being applied while disagreeing with its application. That’s the difference between you and I. Whereas I understand both how the law should be applied and how the law is, in actuality, being applied, you just focus on how the law should be applied. Knowing how the law should be applied is part of the fun philosophical game we play here on these messages boards. However, knowing what how the law is, in actuality, being applied is most important to getting my clients a good result.

    You insult yourself by making stupid statements. Not only have I known who Vidkun Quisling is since the last century, but Max Brooks’ adaptation of the word “quisling” is brilliant.
    Yet you are unable to defend your use of the word. I have been on IPWatchdog far longer than you. I have castigated the Courts and the Supreme Court on 101 far longer than you. However, unlike you, I don’t serially misrepresent the law. The fact that I understand the law and knew why your case was doomed from the beginning based upon the existing case law hardly earns me this particular insult.

    Slightly modified? By stating that a claim evokes a theory of abstract that is a scientific impossibility all while violating due process and the APA in the process?
    I look forward to reading your Request for Rehearing. It is going to be amusing.

  • [Avatar for B]
    B
    November 8, 2022 11:22 am

    @ Curius “You need to up your insult game as you obviously don’t know the historical context behind ‘being a Quisling.’

    You insult yourself by making stupid statements. Not only have I known who Vidkun Quisling is since the last century, but Max Brooks’ adaptation of the word “quisling” is brilliant. https://zombie.fandom.com/wiki/Quisling

    “Regardless, it doesn’t take a mind reader to see how Chen slightly modified the language from Electric Power Group.”

    Slightly modified? By stating that a claim evokes a theory of abstract that is a scientific impossibility all while violating due process and the APA in the process?

    Seriously! Call it an insult and whine away, but your positions get more bizarre and dishonest with every post. You’re too far gone to bother with any more.

  • [Avatar for B]
    B
    November 8, 2022 10:17 am

    @ primary examiner “While other Applicants will continue to be granted patents, you and B (and a few others who want to be your friends, and contribute to your blindness) will still be on Internet forums months from now, complaining and arguing that judges are against you, the Courts are against you, the PTO is against you, almost everyone is against you.”

    Most examiners outside 3600 are reasonable as can be under the circumstances re Alice-Mayo. However, the fact is that the (non-3600) PTAB will typically only reverse an Alice-Mayo rejection is there’s some technicality and the 3600 PTAB will affirm at all costs. The CACF has NEVER set aside an Alice-Mayo rejection from the PTAB.

    I’ve also asked over 300 examiners what they thought an “inventive concept” is. all but three said they had no idea. Two said anticipation; another said non-obvious.

    I’m not blind – I’ve just done the research unlike anyone in the USPTO and judiciary. The key to understanding the present is to understand what happened before when “invention” corrupted the patent law. It’s the same stupidity with the arrogant anti-patent “flash of genius” knuckleheads reincarnated.

    To you there are no consequences to the Alice-Mayo test. However, Anon, Night-Writer, concerned, Model 101, et al. have personally suffered (of have clients who suffered) under this nonsense. We know the lie of it.

    Ask yourself: why has the Federal Circuit refused to define “inventive concept”?

    Also ask yourself: How can a claim be unanticipated and non-obvious under 102/103 and “well-known, routine, and conventional” under 101?

    If you haven’t answered both questions and still believe Alice-Mayo is remotely sane – most respectfully you’re the blind one.

  • [Avatar for concerned]
    concerned
    November 8, 2022 09:37 am

    Primary Examiner:

    Your own boss, Commissioner Vidal, testified not one judge understands the law.

    Is she blind also?

  • [Avatar for primary examiner]
    primary examiner
    November 8, 2022 06:30 am

    “The fact remains, patent or no patent, I solved a problem even the Social Security Administration and all its working professionals and experts could not solve since the inception of the SSDI program in 1956. Belittling my invention directly insults all of the hard working people in my field and suggests that they are stupid for not seeing this solution sooner. I think you have suggested the preceding before.
    Many of these people have law degrees just like you and many people have just as much experience in my field as you have experience in your field. Mr. Quinn stated in my first article that it is a shame I am not getting a patent. I find him very intelligent and knowledgeable. I suspect Mr. Quinn would not have made said statement if my claims were so underserving and a top 2 candidate for having no shot at a patent.”
    While other Applicants will continue to be granted patents, you and B (and a few others who want to be your friends, and contribute to your blindness) will still be on Internet forums months from now, complaining and arguing that judges are against you, the Courts are against you, the PTO is against you, almost everyone is against you. You are too stubborn (and blind by this point) to accept and understand why you haven’t been granted a patent, instead of focusing and channeling your energy and efforts on improving your application and maybe increasing your chances of ever getting a patent.

  • [Avatar for concerned]
    concerned
    November 8, 2022 05:40 am

    Curious:

    Perhaps you may think my claims are a top 2 candidate to never get a patent, however, it did draw a precedential CAFC decision. There is more to this story than meets the eye.

    Judge Chen using my specifications to make his point fails to further point out the process solved a long term problem with a solution never used in commerce. The underlying business method as a whole, or individual claims, has never been used in my field or any other field (no 103 rejection.)

    If Judge Chen can reduce my entire process down to “the automated system seamlessly carries out the process of determining who is eligible for SSDI and who is not, which frees up assigned staff to perform more traditional duties” then I guess I can reduce the invention of the automobile down to “the invention of the automobile frees up the buggy whip production staff to perform more traditional manufacturing duties, nothing more.” Yes, Judge Chen’s statement is correct, but it was not the entire gist of my invention, its outcomes and the entire specification.

    The fact remains, patent or no patent, I solved a problem even the Social Security Administration and all its working professionals and experts could not solve since the inception of the SSDI program in 1956. Belittling my invention directly insults all of the hard working people in my field and suggests that they are stupid for not seeing this solution sooner. I think you have suggested the preceding before.
    Many of these people have law degrees just like you and many people have just as much experience in my field as you have experience in your field.

    Mr. Quinn stated in my first article that it is a shame I am not getting a patent. I find him very intelligent and knowledgeable. I suspect Mr. Quinn would not have made said statement if my claims were so underserving and a top 2 candidate for having no shot at a patent.

  • [Avatar for Curious]
    Curious
    November 7, 2022 09:46 pm

    Wow, so you’re a mind reader now as well as a quisling.
    You need to up your insult game as you obviously don’t know the historical context behind ‘being a Quisling.’ Regardless, it doesn’t take a mind reader to see how Chen slightly modified the language from Electric Power Group.

    BTW, Killian’s claims aren’t about data analysis either.
    Ooh … this is a good one. What are Killian’s claims about then? Can I take a crack at it? The claims are about determining whether someone is eligible for SSDI benefits based upon one’s spouse or parents. Chen pulls this quote from the specification:
    the automated system seamlessly carries out the process of determining who is eligible for SSDI and who is not, which frees up assigned staff to perform more traditional duties.
    And you think anyone on the Federal Circuit or the Supreme Court is going to find that to be patent eligible? When Concerned first started his complaining here (many years ago), I was sympathetic to his cause. However, when I finally looked up his application (after he gave sufficient information to identify it), it was abundantly clear that the 101 rejection was always going to stick. You’ve been practicing for 20 years or so, am I right? Have you ever seen something more likely to get rejected under 101 than these claims? I’ve seen close to a couple thousand applications and this is easily in the top-5 – maybe top-2. Maybe there was one worse, but I wouldn’t put money on it. After Alice came out, these claims had zero hope. Even a marginally competent attorney would have recognized that. The fact that you continue to tilt at this windmill says a lot about you – none of it good.

    However, keep on speaking, because the more you do, the more you discredit yourself.
    I’m not the one who Chen took behind the woodshed.

  • [Avatar for B]
    B
    November 7, 2022 06:36 pm

    @ Curious “The Court believes generic computers are used to analyze things, and the Court used the term ‘comprehend’ instead of ‘analyze.’ ”

    Wow, so you’re a mind reader now as well as a quisling.

    BTW, Killian’s claims aren’t about data analysis either. Neither are the claims in In re Smith or the IBM v. Zillow case. Your petty retorts are just that – petty.

    However, keep on speaking, because the more you do, the more you discredit yourself. Say enough stupid things and you’ll likely be appointed to the Federal Circuit.

    Anyway, have a lovely week.

  • [Avatar for Curious]
    Curious
    November 7, 2022 05:41 pm

    It’s not hyperbole when 100% true. Generic computer networks don’t comprehend. It takes either an idiot completely unfamiliar with computers to believe it – or a “thank you, sir, may I have another” quisling to accept such incompetence from the courts.
    The Court believes generic computers are used to analyze things, and the Court used the term ‘comprehend’ instead of ‘analyze.’ You serious think you are going to get any headway with anyone arguing that point?

    If no one stands up to this incompetence, it’ll only get worse.
    Only if they present good arguments. If they don’t, it gets worse. See In re Killian.

    I don’t tolerate dishonesty from the courts, and I make no apologies.
    They may not tolerate dishonestly from you. You have been warned, but it is kind of too late at this point.

    BTW, I picked up a new client in AI and quantum computing. Absolutely brilliant man along the lines of Bernard Widrow, Steven Grossberg, and Gail Carter. His applications are being killed at the USPTO under 101. Too much math and science and stuff that the examiners can’t understand.
    Good for you. My suggestion is to rewrite the claims instead of going to the Federal Circuit. If your client is doing good AI/quantum computing work and the claims are getting 101’d then the specification and/or claims suck. In the computer arts, having an AI-related application makes overcoming a 101 rejection fairly easy — quantum computing even more so.

    Meanwhile, China is eating our lunch in these technologies because idiots like Chen and Taranto (are you reading this Federal Circuit?) can’t read a statute or case law.
    Meh. I’ve always found arguments like that a bit tenuous.

    But you be you
    Yeah … with hundreds and hundreds and hundreds and hundreds of Notices of Allowance under my belt in the computer arts, I’m doing good.

  • [Avatar for B]
    B
    November 7, 2022 12:42 pm

    @ Curious “Who needs facts and/or an explanation when hyperbole will do. Does the Federal Circuit respond well to hyperbole? Asking for a friend.”

    It’s not hyperbole when 100% true. Generic computer networks don’t comprehend. It takes either an idiot completely unfamiliar with computers to believe it – or a “thank you, sir, may I have another” quisling to accept such incompetence from the courts.

    Judge Giles Rich remarked on this same nonsense by judges and justices more than a half century ago. Judges Moore and Newman have more recently commented on such incompetence in American Axle and Yu v. Apple. If no one stands up to this incompetence, it’ll only get worse.

    I don’t tolerate dishonesty from the courts, and I make no apologies.

    BTW, I picked up a new client in AI and quantum computing. Absolutely brilliant man along the lines of Bernard Widrow, Steven Grossberg, and Gail Carter. His applications are being killed at the USPTO under 101. Too much math and science and stuff that the examiners can’t understand.

    Meanwhile, China is eating our lunch in these technologies because idiots like Chen and Taranto (are you reading this Federal Circuit?) can’t read a statute or case law.

    But you be you

  • [Avatar for Curious]
    Curious
    November 7, 2022 11:54 am

    Imprecise? It’s wholesale fantasy. Really, really stupid fantasy detached from all reality.
    Who needs facts and/or an explanation when hyperbole will do. Does the Federal Circuit respond well to hyperbole? Asking for a friend.

    The fact you can’t see even what I’m looking for is why I have no respect for your opinions. You’re so far behind the curve you can’t see the curve.
    Why answer a legitimate question, when you can insult the asker of the question. This is the sign of a deep thinker.

    The CAFC must confirm an agency’s action based on the grounds of the agency put forth – not create a new grounds.
    Have you ever made this argument before – that the Federal Circuit introduced a new grounds? Do you have a link to where you made this allegation? What was the new grounds?

    You’re so dense it must be painful.
    Hmmm. You still haven’t answered the question. How does the APA apply to Judge Chen (and the Federal Circuit) just that Judge Chen violates the APA? BTW – don’t blame me for your sloppy language.

    when he was the Solicitor in In re Sang-Su Lee
    At that time, Chen worked for the USPTO – subject to the APA. He doesn’t work for the USPTO now. So tell me again, how “Judge Chen had to violate the APA”?

    I was told by the PTAB that my process met the law as it had been written, which is an obvious statement by reading the statute.
    Big f’n deal. You passed Step 1. Everyone passes Step 1. But in reality, and I just quickly scanned your Decision on Appeal, the PTAB didn’t address Step 1. As such you were not told by the PTAB that your process met the law as it had been written. Perhaps you can be unlike your attorney and actually answer a question asked and tell me where they wrote that?

    The better question in my opinion: If I met the law as it has been written, why the contrary opinions on my process by the court? Are the courts really legislating from the bench?
    The Courts have been doing that since before the start of the Republic. You can either bemoan the sun rising every day in the east or you can put on sunglasses when it does. You and B seem adamant about trying to convince the sun not to rise.

    The Solicitor admitted that the mental steps argument was made to avoid the evidence issue.
    Forgive me if I hold off believing you until I actually read the Solicitor’s brief.

    (A) the PTAB refused to consider a large amount of evidence favoring Killian, (B) the PTAB changed the theory of rejection (to mental steps) precisely to avoid addressing Killian’s evidence, and (C) that “[t]here are 55 documents of unquestioned veracity and efficacy entered into evidence that support Appellant’s position and exactly zero words of evidence supporting the Board’s position that Killian’s underlying business method is abstract.”
    (A) why does it favor Killian when it shows the prior art? If I introduce 55 prior art patents (in my field) that don’t show my invention (that was rejected under 101), is that going to be persuasive? Has anyone ever successfully made that argument?

    (B) The PTAB changed its theory based upon the 2019 PEG, which issued after the Examiner’s initial rejection. They conceded as much and designated the rejection as a new grounds, which is what they were supposed to do.

    (C) “evidence supporting the Board’s position that Killian’s underlying business method is abstract”? You do know this determination is not one of fact but one of law? When your arguments contain fundamental flaws, don’t be surprised when they get ignored.

    Judge Chen admitted that not all the steps could be performed by mental steps, but then said that the fact that not all of the steps could performed by mental steps saved the claims. Why is not stated.
    “Why” is stated. Read pages 18 and 19 of the Slip Opinion.

    Curious, you don’t have to like concerned’s claims, but you should be alarmed that the CAFC will violate the APA and due process in order to affirm a flawed PTAB decision.
    Yet again – the CAFC cannot violate the APA. Under Federal Circuit precedent Killian was an easy affirmance. Even if Chen desperately desired, more than anything else in the world, to have Killians’ claims to be patent eligible under 35 USC 101, he is bound by Federal Circuit precedent. This is what he wrote on page 14 of the Slip Opinion:
    Even if we were persuaded by Mr. Killian’s argument that the Alice/Mayo framework is insolubly unclear, both this court and the Board would still be bound to follow the Supreme Court’s § 101 jurisprudence as best we can as we must follow the Supreme Court’s precedent unless and until it is overruled by the Supreme Court.
    It isn’t Chen’s job to overrule Supreme Court precedent. If you want to go to the Supreme Court, that’s on you and your client.
    Chen also wrote the following on page 17 of the Slip Opinion:
    Further, we are bound by our precedential decisions holding that steps capable of performance in the human mind are, without more, patent-ineligible abstract ideas.
    One panel cannot overrule precedential Federal Circuit case law. Even if Chen wanted to help you, his hands were tied. You should have known that going into it.

  • [Avatar for B]
    B
    November 6, 2022 09:29 am

    @ Curious “The question I have for you (and/or perhaps Concerned) is what do these documents show about Concerned’s invention? Perhaps you can just reproduce what you wrote about those documents in your brief.”

    Basically, over pages 11-13 of a much longer evidence argument, that (A) the PTAB refused to consider a large amount of evidence favoring Killian, (B) the PTAB changed the theory of rejection (to mental steps) precisely to avoid addressing Killian’s evidence, and (C) that “[t]here are 55 documents of unquestioned veracity and efficacy entered into evidence that support Appellant’s position and exactly zero words of evidence supporting the Board’s position that Killian’s underlying business method is abstract.”

    The Solicitor admitted that the mental steps argument was made to avoid the evidence issue.

    Judge Chen admitted that not all the steps could be performed by mental steps, but then said that the fact that not all of the steps could performed by mental steps saved the claims. Why is not stated.

    Chen’s spontaneous concoction of comprehending generic computer network theory is beyond idiotic, and violates the APA and 70 years of Supreme Court precedent while depriving concerned of an opportunity to be heard..

    Curious, you don’t have to like concerned’s claims, but you should be alarmed that the CAFC will violate the APA and due process in order to affirm a flawed PTAB decision – and YES, s 706 of the APA sets forth requirements of the CAFC. Chen, being too stupid to read s 706, therefore made a public fool of himself by claiming the APA does not apply to the CAFC.

    Chen – are you or one of your clerks reading this? I hope so! Your decisions are an embarrassment to the courts and to you personally. Giles Rich mocked your ilk decades ago.

  • [Avatar for concerned]
    concerned
    November 6, 2022 08:13 am

    And no, I am not happy the courts are using MY case as a means to an end result.

    Again, if the PTAB conceded that I met the law as it had been written in 1952 (obvious), but the courts see otherwise, who is really writing the laws of this country?

    Considering my case was made precedential on a Congressional law from 1952, the law writing is ever so present.

  • [Avatar for concerned]
    concerned
    November 6, 2022 05:37 am

    Curious: “Question — how many of those appellants lost with a precedential decision that made things worse for everyone?”

    The courts will need to accept the responsibility of making things worse for everyone. I was told by the PTAB that my process met the law as it had been written, which is an obvious statement by reading the statute.

    The better question in my opinion: If I met the law as it has been written, why the contrary opinions on my process by the court? Are the courts really legislating from the bench?

  • [Avatar for B]
    B
    November 6, 2022 01:38 am

    @ Curious “As such, Chen’s characterization, while imprecise, is certainly not outlandish.”

    Imprecise? It’s wholesale fantasy. Really, really stupid fantasy detached from all reality.

    “As for mental steps, why are you looking for “mental steps” in decisions that reverse/vacate a 101 rejection?”

    The fact you can’t see even what I’m looking for is why I have no respect for your opinions. You’re so far behind the curve you can’t see the curve.

    This is why I can’t take anything you say seriously. Plus, you missed the bigger issue. The CAFC must confirm an agency’s action based on the grounds of the agency put forth – not create a new grounds.

    “You wrote, and let me quote, “Judge Chen had to violate the APA”. How can one violate something that doesn’t apply to them?”

    You’re so dense it must be painful. s 706 applies to the rules that a reviewing court must follow. s 701 (cited by Chen) defines what an “agency” is. BTW, Chen had his head handed to him on this very issue when he was the Solicitor in In re Sang-Su Lee (Fed.Cir. 2002). https://caselaw.findlaw.com/us-federal-circuit/1019482.html

    Now you’re merely arguing for the sake of trying to maintain the appearance you aren’t totally inept at 101. It’s failing.

  • [Avatar for Curious]
    Curious
    November 5, 2022 11:16 pm

    As to Berkheimer, DDR Holdings, McRO, Enfish, etc. – I’ve read those too. Funny how none of those cases were about mental steps or comprehending computer networks.
    Comprehending computer networks? How about you accurately cite from your own opinion. This is what Chen wrote:
    So too, here, Mr. Killian’s claims must fail Alice/Mayo step one as they are directed to collection of information, comprehending the meaning of that collected information, and indication of the results, all on a generic computer network operating in its normal, expected manner. As the application’s specification suggests, nothing technical exists in the nature of these steps; they could be performed by a person reading and comprehending the meaning of the recited information.
    Chen argues that a computer network (presumably including a computer) comprehends information. Personally, I would use a different word than “comprehend” — however, it isn’t hard to find articles in which computers are described as comprehending information. As such, Chen’s characterization, while imprecise, is certainly not outlandish.

    As for mental steps, why are you looking for “mental steps” in decisions that reverse/vacate a 101 rejection? Stripping away the conventional components and conventional computer activities (e.g., retrieving and storing information), your claimed invention can be performed without a computer. This is why it was such a slam dunk loser based upon past Federal Circuit precedent.

  • [Avatar for Curious]
    Curious
    November 5, 2022 10:56 pm

    Het, Curious – I never once stated that the APA applies to “the courts of the United States.”
    You wrote, and let me quote, “Judge Chen had to violate the APA”. How can one violate something that doesn’t apply to them?

    Still, I dare you to find where I said such in my briefs
    I haven’t read your briefs. Post a link, and I’ll review them.

    The reviewing court shall—
    The reviewing court disagreeing with you is not a violation of the APA. Where is David Boundy when you need him to opine on the APA?

    There are no appellants that won from the USPTO.
    You’ve made that point already. Question — how many of those appellants lost with a precedential decision that made things worse for everyone?

    No, most your comments are too weak to both with. I do focus on your more idiotic mantras to my detriment. Like wrestling with a greased pig.
    I assume unanswered points are wins on my part. Remember when Chen wrote:
    At bottom, Diehr did not comment on or overrule the mental steps doctrine. Nor has Mr. Killian pointed to any statement in Bilski that undermines a mental process as one of the judicial exceptions; after an independent review, we find nothing in that opinion to that effect.
    An example of a point you failed to address is my statement that Diehr said nothing about mental steps in the majority opinion – this is a win for me. You always ignore this point when I raise it because you have no good response.

    Just curious. Chen wrote the following:
    Finally, while Mr. Killian refers, rather obliquely, to fifty-five documents allegedly presented to the examiner and the Board, Mr. Killian does not explain on appeal what specifically these fifty-five documents show, nor did he include them in the joint appendix. In his opening brief, Mr. Killian said about these documents only that “there are fifty-five separate documents of unquestioned veracity and efficacy entered into evidence that support Appellant’s position.”
    The question I have for you (and/or perhaps Concerned) is what do these documents show about Concerned’s invention? Perhaps you can just reproduce what you wrote about those documents in your brief.

  • [Avatar for B]
    B
    November 5, 2022 06:59 pm

    @ Curious “Maybe you should have read the briefs of those that won?”

    There are no appellants that won from the USPTO.

    As to Berkheimer, DDR Holdings, McRO, Enfish, etc. – I’ve read those too. Funny how none of those cases were about mental steps or comprehending computer networks.

    “Yet here you are — hanging on my every word.”

    No, most your comments are too weak to both with. I do focus on your more idiotic mantras to my detriment. Like wrestling with a greased pig.

  • [Avatar for B]
    B
    November 5, 2022 06:51 pm

    @ Curious “The APA doesn’t apply to the Federal Circuit. See 5 USC 551(1)(B). As such, Judge Chen cannot violate the APA. You’ve been told this several times by me and Judge Chen. Why do you still make this error?”

    Het, Curious – I never once stated that the APA applies to “the courts of the United States.” Judge Chen OUTRIGHT LIED about that. Notice Chen didn’t point to any page of any brief or quote any portion of any brief? Still, I dare you to find where I said such in my briefs. They’re public documents so no excuses.

    Furthermore, Title 5 U.S.C. s 706 absolutely has requirements that reviewing courts must apply.

    ——————————–

    Title 5 U.S.C. s 706

    To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
    .
    .
    .

    (2) hold unlawful and set aside agency action, findings, and conclusions found to be—
    (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
    (B) contrary to constitutional right, power, privilege, or immunity;
    (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
    (D) without observance of procedure required by law;
    (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
    (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

    In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

    ——————–

    Quod erat demonstrandum

  • [Avatar for Curious]
    Curious
    November 5, 2022 06:49 pm

    I’d have to respect your opinion to be upset by it
    Yet here you are — hanging on my every word. Your actions speak louder than your words.

    No – you made a comment on word counts – apparently my follow through upset you greatly.
    Oh the tears, can you type through them? Should I stop now?

    Whenever the Federal Circuit resorts to lying and breaking the law, I’ve won the argument if not the case.
    When you go back down to the PTAB, remind them that you won the case — regardless of what the Federal Circuit wrote. Let us know how that works out.

    Some cringe but a lot of competence as well.
    I felt the same after listening to your oral argument. However, it was a lot of cringe and not a lot of competence.

    Regardless, not a single Alice-Mayo appeal from the USPTO has ever been set aside by the CAFC
    But there have been those from the District Court that have prevailed. I suspect that the difference lies in that people who litigate oftentimes have money to pay real appellate attorneys whereas those who are just in prosecution do not.

    I’ve read every brief of every one of those cases
    Maybe you should have read the briefs of those that won?

  • [Avatar for Curious]
    Curious
    November 5, 2022 06:40 pm

    I’m pretty sure Judge Chen has a little “B” doll he sticks pins in and dangles over a candle.
    Not that it is going to help in the long run, but Chen did you a huge favor by giving you an opinion instead of as Rule 36 affirmance.

    Yet it seems to me that most of the clerks at the CAFC are learning disabled.
    Winning friends and influencing people. You are the best.

    Judge Chen claimed an independent review on Diehr was made (in Killian) and confirmed that Diehr “did not comment on” the mental steps holding of Benson.
    The majority opinion never discussed the mental steps holding of Benson. Let me give you a practice tip – most judges don’t care what a dissent says. You do know the difference between the majority opinion and a dissent?

    Furthermore, not a single judge or clerk at the CAFC knew (BEFORE I TOLD THEM IN ORAL HEARING) that the SCOTUS never held a process well-known/well-understood, routine, and conventional without evidence.
    Raising a new argument in the oral hearing? Ouch. BTW, where was the evidence in Bilski and CLS Bank?

    I’m just so incredibly unimpressed with the intellect and integrity of most CAFC judges.
    Winning friends and influencing people.

  • [Avatar for B]
    B
    November 5, 2022 06:37 pm

    @ Curious “I can almost taste your tears.”

    I’d have to respect your opinion to be upset by it

    “Nice straw man you attacked.”

    No – you made a comment on word counts – apparently my follow through upset you greatly.

    “My guess is that you’ll have better luck going up against that straw man than you will with the Federal Circuit.”

    Whenever the Federal Circuit resorts to lying and breaking the law, I’ve won the argument if not the case. Regardless, not a single Alice-Mayo appeal from the USPTO has ever been set aside by the CAFC, and I’ve read every brief of every one of those cases. Some cringe but a lot of competence as well. Of all the arguments in every case, you know which arguments worked? None of them.

    The CAFC depends on people just reading over these decisions and forgetting them to maintain a modicum of credibility.

  • [Avatar for B]
    B
    November 5, 2022 06:17 pm

    @ Curious “You ever think that some of the law clerks for the Federal Circuit browse this blog from time to time. You ever think your comments about the Federal Circuit judges might can passed along to others? I didn’t think so . . . ”

    ARE YOU KIDDING? Personally, I pray that they do pass such comments on. I’m pretty sure Judge Chen has a little “B” doll he sticks pins in and dangles over a candle.

    Yet it seems to me that most of the clerks at the CAFC are learning disabled. For instance, Judge Chen claimed an independent review on Diehr was made (in Killian) and confirmed that Diehr “did not comment on” the mental steps holding of Benson. Judge Chen should fire the clerk that told him something so stupid because now Chen owns those words for eternity.

    Furthermore, not a single judge or clerk at the CAFC knew (BEFORE I TOLD THEM IN ORAL HEARING) that the SCOTUS never held a process well-known/well-understood, routine, and conventional without evidence. The panel was SHOCKED I’d say something so brazen. Golly, you’d think that, in the five preceding years (at that time), someone at the CAFC might have noticed that.

    I’m just so incredibly unimpressed with the intellect and integrity of most CAFC judges. They’re nothing more than tiny egotistical people who screw over honest businessmen and inventors merely because they can.

    Giles Rich and Learned Hand made names for themselves by not pulling punches when confronted with stupidity. I have no illusions of reaching such status, but hey, the best part of the appellate game: citing judges to themselves to show how vapid their past decisions are.

  • [Avatar for Curious]
    Curious
    November 5, 2022 05:41 pm

    You constantly throw insults, and yet you complain so harshly when you receive criticism.
    I can almost taste your tears.

    On the other hand, only a simpleton would assume every rehearing brief could be addressed in 3,900 words.
    Nice straw man you attacked. My guess is that you’ll have better luck going up against that straw man than you will with the Federal Circuit.

  • [Avatar for Curious]
    Curious
    November 5, 2022 05:34 pm

    Benson was decided a few months b/f Roe, and there’s no political party fighting for these idiotic exceptions.
    You don’t think Google, Meta, Apple, MS, and all of the other big tech companies have no influence with the political parties? If not, then you haven’t been paying attention. Money talks in our political system. While the likes of Paul M. have been great in advocating for small inventors/companies, he has nowhere near the juice (aka $$$) that the companies I listed above have. Interpreting 35 USC 101 isn’t about the law. It isn’t about the Constitution. It is about the money. Money talks in our political system, and their money has been talking a lot louder than our money.

    I’ve never once been corrected on issues of fact or law by any judge in my career. In fact, Judge Chen had to violate the APA and 70 years of Supreme Court precedent to maintain a 101 rejection.
    LOL. You created a self-contained correctable issue of law in that very statement. The APA doesn’t apply to the Federal Circuit. See 5 USC 551(1)(B). As such, Judge Chen cannot violate the APA. You’ve been told this several times by me and Judge Chen. Why do you still make this error?

    If I wanted to play loose on an issue of law, I’d declare something stupid like,” The Supreme Court’s exceptions to patent eligibility are mere interpretations of the statutory patent law.”

    From Alice v. CLS Bank:
    We have long held that this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.” Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U. S. ___, ___ (2013) (slip op., at 11) (internal quotation marks and brackets omitted). We have interpreted §101and its predecessors in light of this exception for more than 150 years. Bilski, supra, at 601-602; see also O’Reilly v. Morse, 15 How. 62, 112–120 (1854); Le Roy v. Tatham, 14 How. 156, 174–175 (1853).
    A philosopher, dreamer, AND delusional. How nice.

  • [Avatar for B]
    B
    November 5, 2022 05:26 pm

    @ Curious “Continue to win friends and influence people. You are great at it.”

    You constantly throw insults, and yet you complain so harshly when you receive criticism.

  • [Avatar for B]
    B
    November 5, 2022 05:22 pm

    @ Curious “B should have been at the IPWatchdog conference in September. They had a panel of judges (including from the Federal Circuit). One of their points was that just because you have a word count that you shouldn’t use them all.”

    Oh, I absolutely agree, and most of my briefs are far under an allowed word count. My last SCOTUS Petition for Cert. as well as my Reply Brief, were about half what is allowed.

    On the other hand, only a simpleton would assume every rehearing brief could be addressed in 3,900 words.

  • [Avatar for Curious]
    Curious
    November 5, 2022 05:19 pm

    Under that theory there is no separation of powers between the judiciary and the legislature as there is no language in any portion of the Patent Law to justify such an interpretation.
    Then take that argument to the Supreme Court and see where it gets you.

    You merely bend over and scream “Thank you, sir, may I have another!” after ever new idiotic Alice-Mayo decision while convinced that there’s something remotely constitutional about Alice-Mayo
    Continue to win friends and influence people. You are great at it.

    However, the problem now is a dishonest and incompetent Federal Circuit.
    LOL. And you are going to them with hat in hand saying “I know you are dishonest and incompetent but would you reverse 90% of your case law regarding 101 since Alice? — pretty please with sugar on top” Just continue to win more friends and influence more people. You are a trip — the kind that makes people swear off drugs for good.

    I’m smart, but I never considered myself genius or close to it. However, it doesn’t take genius to recognize the lack of intellect of the majority (certainly not all) of the judges in the Brawndo Court of Appeals.
    You ever think that some of the law clerks for the Federal Circuit browse this blog from time to time. You ever think your comments about the Federal Circuit judges might can passed along to others? I didn’t think so — you are all about winning friends and influencing people.

    Me, I’m building a clear record as to the dishonesty of the Federal Circuit.
    Go down that path at your own peril. Being a zealous advocate for your client has limits. Continuing to misrepresent the law while making frivolous arguments could come back to bite you.

  • [Avatar for B]
    B
    November 5, 2022 05:11 pm

    @ Curious “. Dobbs took 50 years and the issue was the #1 rallying point for an entire political party for almost the entirety of that time.”

    Benson was decided a few months b/f Roe, and there’s no political party fighting for these idiotic exceptions.

    “Because as I have shown many times in the past, B plays loose with the facts and the law”

    I’ve never once been corrected on issues of fact or law by any judge in my career. In fact, Judge Chen had to violate the APA and 70 years of Supreme Court precedent to maintain a 101 rejection. Stop being such a quisling.

    If I wanted to play loose on an issue of law, I’d declare something stupid like,” The Supreme Court’s exceptions to patent eligibility are mere interpretations of the statutory patent law.”

  • [Avatar for Curious]
    Curious
    November 5, 2022 04:58 pm

    Until it does.
    A philosopher AND a dreamer.

    Maybe you haven’t been paying attention. See Dobbs.
    You are the one who hasn’t been paying attention. Dobbs took 50 years and the issue was the #1 rallying point for an entire political party for almost the entirety of that time. Patent law is a niche issue that one in a thousand understand (and I might be overestimating here). Supreme Court justices are NOT appointed based upon whether or not they have a particular position regarding 35 USC 101 unlike the issue in Dobbs. Alice was 9-0. Mayo was 9-0. Bilski was 9-0. They don’t f’n care.

    I have also provided solutions that the Court itself could take to extract itself (and everyone) from the Gordian Knot that it has started (the Kavanaugh Scissors).
    And I can argue that Lucius Malfoy and Lord Voldemort could descend upon the chambers of the Supreme Court and cast Cruciatus Curses on everyone until the Supreme Court issues a ruling eliminating those exceptions. Both are equally likely to occur.

    Sure (as I have provided solutions including Congress using their Constitutional power of jurisdiction stripping of matters of non-original jurisdiction [along with a reformulation of a proper Article III court])
    LOL. To make a change via Congress requires a well-aimed rifle shot and a will to pull the trigger. Yet you somehow think that the more viable option is for Congress to have the will to drop a nuclear bomb? You are one funny guy. Moreover, your “solution” doesn’t even solve the problem. At best, you are hoping that “a proper Article III court” will somehow come to a different conclusion than the Supreme Court. This so-called “proper article III court” will exceedingly very likely do exactly what the Federal Circuit did in South Corp. v. U.S. in 1982. Specifically, they’ll adopt the holdings of their predecessor courts. You are then back again to relying upon the mercy of political appointees to hear your case and hope they come out differently. Seriously, you’ve been spouting this nonsense for how long? In all that time have you not considered how your proposal would play out in reality?

    You keep on wanting to misrepresent those (mere philosophers indeed) with different ideas than yours shows only that you just do not understand those different ideas.
    I don’t misrepresent your ideas in the slightest. The problem with your “ideas” is that they are based upon dreams and fantasies – not reality.

    No. No, you are not. NOT addressing root causes of problems makes you — at best — a band-aid applier.
    I’m sorry dude. The law is made up and applied by people. People are imperfect and self-centered. There is no addressing that root cause. Until you figure out that people aren’t perfect and “perfect” arguments are not going to be successful with these imperfect people, you will continue to waste time and energy going down paths that have no hope of bearing fruit.

    B has been working real hard on my appeal brief, more than anyone could possibly expect. I am lucky to have him as counsel.
    How many wins have B presented to you? Has B presented you with any issued patents? Has he made you any money?

    I read my RFR brief as a layperson and wonder “How can I lose this appeal?”
    Because as I have shown many times in the past, B plays loose with the facts and the law – easy to be persuasive when you aren’t accurately characterizing the law. And BTW, thanks to you and B, the rest of us are stuck with a precedential Federal Circuit decision that allows the USPTO to more easily reject patent applications – that decision with your name on it. Aren’t you so proud of B’s work?

    Perhaps B will be the one that finally gets the attention of the right panel to fix many of these issues.
    Another philosopher/dreamer amongst us. Also, you aren’t looking for the “right panel” anymore. You are looking for 7 judges who want to revisit nearly ALL of their 101 precedents since Alice.

    Anyway, I just filed Killian’s RFR brief. Had to file a motion to go over the word count
    B should have been at the IPWatchdog conference in September. They had a panel of judges (including from the Federal Circuit). One of their points was that just because you have a word count that you shouldn’t use them all. One of them asked the rhetorical question to the others of ‘how many briefs have you read in which you finished and said to yourself … I wish there was more.’ They all laughed. From your comments here, it seems like you put everything in but the kitchen sink into your arguments. 7 mediocre arguments don’t trump 1 good argument. Regardless, all of the good arguments have been made (and rejected) – many times over.

  • [Avatar for B]
    B
    November 5, 2022 03:15 pm

    “The reality is that the Supreme Court has “interpreted” 35 USC 101 to include exceptions”

    Under that theory there is no separation of powers between the judiciary and the legislature as there is no language in any portion of the Patent Law to justify such an interpretation.

    And as to being a problem solver,” people like Gene, Paul Morinville, Sherry Knowles, retired Judge Michele, and others who toil in the courts, in the legislature, through briefs, law review articles, IPWatchdog, etc. are the problem solvers.

    You merely bend over and scream “Thank you, sir, may I have another!” after ever new idiotic Alice-Mayo decision while convinced that there’s something remotely constitutional about Alice-Mayo

    However, the problem now is a dishonest and incompetent Federal Circuit.

    I’m smart, but I never considered myself genius or close to it. However, it doesn’t take genius to recognize the lack of intellect of the majority (certainly not all) of the judges in the Brawndo Court of Appeals.

    Me, I’m building a clear record as to the dishonesty of the Federal Circuit. Judges, such as Chen and Taranto, will lie through their teeth and violate any law in the books (including an opinion they wrote the week before) rather than answer a basic question. Others are just too clueless for words and couldn’t identify a circular argument if their robes depended on it.

  • [Avatar for concerned]
    concerned
    November 5, 2022 08:52 am

    Curious: “Tilt at that windmill all you want — it isn’t going to change anything. Anon: Until it does.”

    B has been working real hard on my appeal brief, more than anyone could possibly expect. I am lucky to have him as counsel.

    I read my RFR brief as a layperson and wonder “How can I lose this appeal?” B is correct, not a single question was answered in my appeal and the evidence issue was a complete dodge under the guise the argument was not preserved.

    Perhaps B will be the one that finally gets the attention of the right panel to fix many of these issues. Perhaps “until it does” will become “and it did.”

  • [Avatar for Anon]
    Anon
    November 5, 2022 07:53 am

    It appears that an additional comment is still needed to ‘push’ a first comment through….

  • [Avatar for Anon]
    Anon
    November 5, 2022 07:51 am

    Tilt at that windmill all you want — it isn’t going to change anything.

    Until it does.

    Maybe you haven’t been paying attention. See Dobbs.

    Only Congress can truly fix this mess.

    Also, and simply, untrue.

    Sure (as I have provided solutions including Congress using their Constitutional power of jurisdiction stripping of matters of non-original jurisdiction [along with a reformulation of a proper Article III court]), I have also provided solutions that the Court itself could take to extract itself (and everyone) from the Gordian Knot that it has started (the Kavanaugh Scissors).

    You keep on wanting to misrepresent those (mere philosophers indeed) with different ideas than yours shows only that you just do not understand those different ideas.

    That’s not the sign of a problem solver.

    I’m a problem solver — not a philosopher such as B and Anon.

    No. No, you are not. NOT addressing root causes of problems makes you — at best — a band-aid applier.

  • [Avatar for Curious]
    Curious
    November 4, 2022 08:31 pm

    The statement, “(And, in any case, the exceptions have defined the statute’s reach as a matter of statutory stare decisis going back 150 years).” is clearly legal error.
    Tilt at that windmill all you want — it isn’t going to change anything.

    “Exceptions” are not “interpretations” no matter how much you want to believe such nonsense.
    Tilt at that windmill all you want — it isn’t going to change anything.

    I’m a problem solver — not a philosopher such as B and Anon. Philosopher opine on what things should be. Problem solvers look at the reality of the situation and attempt to identify ways to address that reality.

    The reality is that the Supreme Court has “interpreted” 35 USC 101 to include exceptions. The reality is that even if the Court improperly interpreted 35 USC 101 (which everyone here agrees that they did), under statutory stare decisis, it doesn’t matter because Congress has chosen not to correct the Supreme Court. Jump on Rocinante if you want, it isn’t going to change anything.

    As I have written before, there are three solutions to addressing 101:
    1) The Supreme Court reversing itself (not going to happen … period … full stop).
    2) Federal Circuit issues an en banc decision that cabins Alice to what the Supreme Court actually stated (extremely unlikely to happen — not enough votes) and it won’t address that the exceptions are still there.
    3) Action by Congress.

    Only Congress can truly fix this mess.

  • [Avatar for B]
    B
    November 4, 2022 12:02 pm

    @ Anon “The Patent Act of 1952 (well within that 150 year window) was explicit about changing the damage done by a Supreme Court that had labeled itself: ‘The only valid patent is one that has not yet appeared before us.’”

    I’m still waiting for Taranto, Reyna, and Hughes to announce the “Flash of Genius” test in an upcoming decision.

    Anyway, I just filed Killian’s RFR brief. Had to file a motion to go over the word count give that Chen refused to answer a single question in the initial brief while conjuring his “comprehending” generic computer network theory and misrepresenting SCOTUS case law. Dunning-Kruger is indeed alive and well in the Judiciary. Then again, Giles Rich apparently saw much of the same 70 years ago.

    “The laws of physis and chemistry . . . do not permit the judicially imagined magic according to which 2 + 2 = 5. Whenever such a spurious test prevails all patents are invalid.” — Giles Rich, Laying the Ghost of the “Invention” Requirement

  • [Avatar for Anon]
    Anon
    November 4, 2022 11:37 am

    The statement, “(And, in any case, the exceptions have defined the statute’s reach as a matter of statutory stare decisis going back 150 years).” is clearly legal error.

    Just because the Supreme Court asserted this does NOT make it so.

    The Patent Act of 1952 (well within that 150 year window) was explicit about changing the damage done by a Supreme Court that had labeled itself: “The only valid patent is one that has not yet appeared before us.”

    There is zero doubt — legal or otherwise — that part of that ‘undoing of damage’ was in the Court’s eligibility ‘jurisprudence’ and the Gist of the Invention (and dozens of similar terms) that had created a moving target of “invention,” and the EXPRESS action of Congress to NOT use that term, but instead opt for a different metric of obviousness/non-obviousness.

  • [Avatar for Anon]
    Anon
    November 4, 2022 11:31 am

    ‘Breeze’ making an appearance on this blog…?

    Things that make you go hmmm.

  • [Avatar for Breeze]
    Breeze
    November 4, 2022 10:15 am

    Somebody tell me where the major question doctrine is in the constitution. Is it with the independent state legislature doctrine and qualified immunity?

  • [Avatar for B]
    B
    November 4, 2022 09:45 am

    @ Curious “It isn’t just stare decisis, it is statutory stare decisis”

    “Exceptions” are not “interpretations” no matter how much you want to believe such nonsense.

    That said – I do agree 10000% that the judiciary, not the USPTO, is the problem under Alice-Mayo.

  • [Avatar for Tired Of It]
    Tired Of It
    November 4, 2022 09:13 am

    If Representative Jordan cares enough about section 101 to hassle the PTO for trying to fix Congress’s failure to intercede in the giant mess that the judicial branch has made of it, he should invest his energy in this much more significant irresponsibility of his own branch, championing legislation to fix it by making this “test” completely and unequivocally permissive.

  • [Avatar for Curious]
    Curious
    November 4, 2022 12:04 am

    Stare Decisis?
    It isn’t just stare decisis, it is statutory stare decisis. This is slightly different and was explicitly mentioned in Bilski v. Kappos (“And, in any case, the exceptions have defined the statute’s reach as a matter of statutory stare decisis going back 150 years”).

    Statutory stare decisis basically states that if the Supreme Court interprets a statute and Congress has had a chance to chime in on that interpretation yet does nothing, that means Congress has implicitly agreed with the Supreme Court’s interpretation (even if that interpretation was wrongly decided). It is actually a stronger doctrine than just run-of-the-mill stare decisis as it applies to Constitutional issues. The reasoning is that the Constitution very rarely gets changed and if the Supreme Court misinterprets the Constitution it is unlikely to be changed in view of the misinterpretation. As such, SCOTUS is more likely to revisit a decision interpreting the Constitution despite stare decisis. On the other hand, Congress modifies statutes all the time (e.g., the America Invents Act), and consequently once SCOTUS has made an interpretation regarding a statute they are sticking with it regardless.

    This is why appeals to SCOTUS as to the propriety of the exceptions to 35 USC 101 are almost assuredly doomed. SCOTUS has punted the ball to Congress on that issue.

  • [Avatar for Model 101]
    Model 101
    November 3, 2022 07:49 pm

    @Curious

    Pardon me.

    Stare Decisis?

    Doesn’t the 1952 patent act decision predate the SCOTUS 101 exception decision?

    All forms of technology.

    Not in 282.

    Exceptions change the meaning of 101.

    I’m just a humble inventor. Not a high court judge. Or tricky patent lawyer.

  • [Avatar for Model 101]
    Model 101
    November 3, 2022 05:46 pm

    Interesting…sort of goes to the heart of the matter.

    The dodos at the Supreme Court who can’t define what a woman is may be reversed on 101 for this reason.

    Hmmmmm

  • [Avatar for Curious]
    Curious
    November 3, 2022 05:37 pm

    While the USPTO is somewhat of a problem, it takes its marching orders from the Courts (i.e., the Federal Circuit and SCOTUS). And SCOTUS has used the doctrine of statutory stare decisis to justify its intrusion on the implicit policy making that is found in its decisions regarding 35 USC 101.

    recent Supreme Court decisions in West Virginia and Henry Schein Inc. help to reaffirm the importance of Congressional legislation over agency interpretations and judicial doctrines, if only Congress would take the invitation to bring clarity and sanity to Section 101 of patent law
    That’s the rub. Congress has to take the invitation. However, they’ve shown little inclination to make serious efforts of reforming Section 101. Rather, both sides of the aisle continue to kowtow to the moneyed interests of Big Tech, which are very happy with the current system, in which they can obtain and enforce patents whereas the little guy cannot.